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We were the international Jewish Coalition Against Sexual Abuse/Assault (JCASA); and were dedicated to ending sexual violence in Jewish communities globally. We did our best to operate as the make a wish foundation for Jewish survivors of sex crimes. In the past we offered a clearinghouse of information, resources, support and advocacy.

Friday, November 27, 1998

Case of Rabbi Dovid Weinberger

Case of Rabbi Dovid Weinberger(AKA: David Weinberger)Case of Breach of Confidentiality

Congregation Shaaray Tefila - Lawrence, NY

November 27, 1998 –– Judge David Goldstein refused to dismiss the civil suit against Rabbis Tzvi Flaum and David Weinberger. "No member of the clergy...would dare breach the sanctity of his or her office to make public the type of confidential, private disclosures at issue in this case".

Flaum and Weinberger were said to have provided written statements to the husband's lawyers that his wife had stopped monthly visits to the mikvah for ritual purification.NOTE: There are several people who go by the name of Dovid Weinberger.

In an apparent landmark New York case, an Orthodox Jewish woman is suing two rabbis for betraying her trust by revealing marital secrets she had told them. Chani Lightman said she went to the rabbis in 1995 for religious counseling about her unhappy marriage and to discuss a divorce. But after she filed for a civil divorce and sought custody of the couple's four children, the rabbis spilled the secrets to her husband's lawyers, according to a suit filed in Queens Supreme Court. The rabbis provided written statements to her husband's lawyers that Lightman had stopped the monthly ritual purification baths Orthodox Jewish law requires that women take, the lawsuit charges. They also revealed that she had stopped having sex with her husband. One of the rabbis also revealed that Lightman admitted "seeing a man in a social setting" despite being married, said her lawyer, Daniel Schwartz. "That wasn't for advertisement," said Lightman, who has moved from Queens to Cedarhurst, L.

I. "I was speaking in confidence about my pain and turmoil, my fears and unhappiness with my marriage.

" When she learned the rabbis had filed statements in the divorce case, she was shocked. "I felt betrayed," she said. "I felt humiliated.

" Her divorce case against Dr. Hylton Lightman is pending, but a judge has granted him temporary child custody. Franklyn Snitow, a lawyer for Rabbis Tzvi Flaum and David Weinberger, asked Queens Supreme Court Justice David Goldstein to throw out the lawsuit, which seeks unspecified damages. But Goldstein on Thursday released a decision saying the rabbis may have violated clergy-penitent privilege established in case law, and ruled the case can proceed to hearings and possible trial. "In my view, this was not only improper, it was outrageous and most offensive considering the status and statute of these defendants in the community," the judge wrote. Goldstein said in his decision he has found no similar case in New York State, and only a few in the country. Flaum is rabbi of Congregation Kneseth Israel in Far Rockaway, Queens, and chairman of Vaad Harabonim, the Rabbinical Council of Far Rockaway and Lawrence, L.

I., court papers state. Weinberger is rabbi of Temple Shaaray Tefila in Lawrence and teaches at the Prospect Park Yeshiva High School and Seminary for Girls in Brooklyn. Snitow said he would appeal, arguing that the rabbis had a religious obligation to share the information with the divorce court because it dealt with Chani Lightman's ability to continue to raise the children in accordance with Orthodox law and customs. He also challenged the assertion that the rabbis' discussions with Lightman were private and spiritual in nature. She brought her mother to the one talk with Flaum, he said.

NEW YORK (JPS) -- Two New York rabbis may have violated clergy-congregant confidentiality, an outraged state court judge announcAt the same time, the judge made a precedent-setting ruling to allow an Orthodox woman to sue the rabbis whom she claims betrayeAfter
she filed for a civil divorce in February 1996 and sought custody of
her four children, the rabbis revealed her secrets to her husband's
lawyers, according to her lawsuit.

Judge David Goldstein refused to dismiss the civil suit against Rabbis Tzvi Flaum and David Weinberger.

"No
member of the clergy...would dare breach the sanctity of his or her
office to make public the type of confidential, private disclosures at
issue in this case," the judge wrote in a ruling released Thursday of
last week.

"Moreover, to do so under the guise of religious
necessity, conviction or the protection of the Torah is not only wrong,
it is outrageous."

Flaum and Weinberger were said to have
provided written statements to the husband's lawyers that Chani Lightman
had stopped monthly visits to the mikvah for ritual purification.

She also told Flaum, according to the affidavit he submitted to the court, that she had seen another man socially.

The
rabbis' lawyer, Frank Snitow, said he will appeal the ruling. Snitow
contends that the rabbis had a religious obligation to share the
information with the divorce court, because it dealt with Chani
Lightman's ability to raise the children in accordance with Orthodox law
and customs.

While the Lightman divorce is pending, a judge has granted her husband, Dr. Hylton Lightman, temporary child custody.

Her husband has refused to give her a get, a religious divorce required under Jewish law.

Chani
Lightman, a 38-year-old nurse, told the New York Post that she had been
betrayed by the rabbis and estranged from the Orthodox community.

"I don't exist anymore. I'm invisible. I feel like I'm dead," she said. "I don't have a life now."

Ethically
and Jewishly speaking, Valley rabbis say it shouldn't have turned into
such a big issue. But other observers say a recent New York court ruling
on the question of rabbinic confidentiality could have broad
ramifications for the Jewish community - in both legal and
congregational settings.

A New York State Supreme Court judge
recently ruled that Rabbi David Weinberger was wrong to disclose a
congregant's confidences by revealing them to her estranged husband and
testifying before the court that oversaw their divorce.

Commenting
on the New York case, Rabbi Bonnie Koppell, of Conservative Temple Beth
Sholom in Mesa, said she thinks it is good that the court chose to
enforce the idea of confidentiality between a rabbi and congregants who
disclose personal information.

"Still, it's sad that it would
take a law to enforce that (assumed confidentiality)," Koppell said. "I
think it's fairly intuitive that if a congregant comes in to talk with
me, the assumption is that it is confidential."

"Congregants
generally develop a relationship with their rabbi and know when they can
trust their rabbi," added Rabbi Maynard Bell of Reform Temple Solel in
Paradise Valley.

In general, religious leaders contacted by
Jewish News agreed that all conversations with individual congregants
are confidential, and that the only domestic matter a rabbi would ever
be compelled to report is child abuse - and in that case, in the
person's presence.

As Rabbi Mark Bisman of Conservative Har Zion
Congregation in Scottsdale pointed out, the Jewish law of lashon hara
instructs people that harmful language is to be refrained from. And
breach of confidentiality, said Bisman, constitutes harmful language.

"Whenever
you deal with people, you need to preserve confidentiality," Bisman
asserted. "People doing therapeutic work, whether as a rabbi or
counselor, need to understand the sophisticated rules of ethics."

Rabbi
David Rebibo of Orthodox Beth Joseph Congregation in Phoenix agreed
that there is implied confidentiality. But he said he also believes that
"in order for material to fall within the context of confidentiality,
the person has to really alert the clergy to this effect."

Several
Jewish groups - including Agudath Israel of America and the Orthodox
Union - are closely following the case and may file briefs in upcoming
rounds of the legal battle. The New York Board of Rabbis said it is
considering running a symposium to examine the implications of the case.

In
the New York case, Chani Lightman, a 38-year-old Orthodox woman, nurse
and mother of four daughters, has been trying to obtain a divorce from
her husband since 1995. She says her husband, Hylton Lightman, a
prominent pediatrician in the Five Towns region of Long Island, has so
far refused to give her a get, the Jewish divorce that only a man can
issue according to halachah, or Jewish law. He is said to have filed a
get with Rabbi Motti Wolmark of Monsey, N.Y., who said, through his
secretary at Yeshiva Shaarey Torah, that he had no comment on the
matter.

Chani Lightman has been given no opportunity to accept
the get if there is one, said her attorney, Daniel Schwartz, and "if her
husband believes that she has been unchaste, he is obligated to give
her one forthwith."

The Lightmans are in the middle of civil
divorce proceedings as well, and the court has awarded Hylton temporary
full custody of their children. Chani Lightman said she went to
Weinberger, who was her pulpit rabbi, and another rabbi in the
community, Tzvi Flaum, in 1995 to discuss her troubled marriage because
she was aware that her husband had also spoken with them.

During
her separate meetings with one of the rabbis, she revealed that she had
stopped going to the mikveh, the ritual bath into which observant women
immerse themselves after menstruating and before resuming sexual
relations with their husbands, because she wanted no further intimacy
with her husband. She also told Flaum, according to the affidavit he
submitted to the court, that she had seen another man socially.

The
rabbis submitted affidavits on Hylton Lightman's behalf as part of the
divorce proceedings, saying that she was not living as an Orthodox woman
should. Chani Lightman took the unusual step of suing the two rabbis
because they disclosed private information to her husband and to the
court without ever getting her permission to do so.

On Nov. 18,
Justice David Goldstein ruled that Weinberger owes Chani Lightman
damages for causing her harm. In his decision, Goldstein called
Weinberger's disclosures not only "improper" but "outrageous and most
offensive."

No date has yet been set for either his ruling on the
amount the rabbi owes his former congregant, or for Flaum's hearing.
The attorney representing them both, Franklyn Snitow, said that he
intends to appeal the ruling in the Weinberger case.

Lightman's
cases poses several thorny questions, among them, "How private is the
information a congregant shares with his or her rabbi?" and "Does a
person run the risk of making public the most intimate details of his or
her life when they turn to a rabbi for guidance?" The New York court
ruling has also raised questions about how involved civil courts should
be in deciding whether a rabbi's judgment is correct.

David
Zwiebel, director of government affairs for Agudath Israel of America, a
group representing fervently Orthodox interests, said he has received a
large number of phone calls from concerned rabbis since the ruling was
handed down. It is likely that the Agudah will file a
friend-of-the-court brief on behalf of the defendants after they appeal,
he said.

"The general rule in secular law and halachah is that
things said in confidence must be kept in confidence," Zwiebel said,
adding, "There are times, though, when the general rule must be
breached."

The rabbis in this case were "concerned over the
mental and spiritual well-being of the children. The rabbis are entitled
to make these sorts of judgments," Zwiebel said.

"If a civil
court is saying that they are not, it comes awfully close to the kind of
entanglement that the First Amendment is designed to prevent," he said.

Zwiebel
said the decision is already having a chilling effect on the ability of
rabbis to counsel their congregants because they fear that if they
learn anything they feel compelled to report, they might be sued.

If
people declare their intention to physically harm themselves or others,
the rabbi is obligated to do whatever it takes to stop them, said
several experts.

Snitow, the defendants' attorney, maintains that
"there was never any expectation of privacy" when Chani Lightman went
to talk to them.

"It was never intended as pastoral counseling or
a penitent's confession," he said in an interview with JTA. That, said
Lightman's attorney, is simply untrue.

The impact of what the rabbis did, said Chani Lightman, has been "like a nightmare."

"I've lost custody of my children, and I've been obliterated (in the community)," she said.

"Other women should not be bamboozled by the rabbis and turned into a pariah."

Ethically and Jewishly speaking, Valley rabbis say it shouldn't have turned into such a big issue. But other observers say a recent New York court ruling on the question of rabbinic confidentiality could have broad ramifications for the Jewish community - in both legal and congregational settings.

A New York State Supreme Court judge recently ruled that Rabbi David Weinberger was wrong to disclose a congregant's confidences by revealing them to her estranged husband and testifying before the court that oversaw their divorce.

Commenting on the New York case, Rabbi Bonnie Koppell, of Conservative Temple Beth Sholom in Mesa, said she thinks it is good that the court chose to enforce the idea of confidentiality between a rabbi and congregants who disclose personal information.

"Still, it's sad that it would take a law to enforce that (assumed confidentiality)," Koppell said. "I think it's fairly intuitive that if a congregant comes in to talk with me, the assumption is that it is confidential."

"Congregants generally develop a relationship with their rabbi and know when they can trust their rabbi," added Rabbi Maynard Bell of Reform Temple Solel in Paradise Valley.

In general, religious leaders contacted by Jewish News agreed that all conversations with individual congregants are confidential, and that the only domestic matter a rabbi would ever be compelled to report is child abuse - and in that case, in the person's presence.

As Rabbi Mark Bisman of Conservative Har Zion Congregation in Scottsdale pointed out, the Jewish law of lashon hara instructs people that harmful language is to be refrained from. And breach of confidentiality, said Bisman, constitutes harmful language.

"Whenever you deal with people, you need to preserve confidentiality," Bisman asserted. "People doing therapeutic work, whether as a rabbi or counselor, need to understand the sophisticated rules of ethics."

Rabbi David Rebibo of Orthodox Beth Joseph Congregation in Phoenix agreed that there is implied confidentiality. But he said he also believes that "in order for material to fall within the context of confidentiality, the person has to really alert the clergy to this effect."

Several Jewish groups - including Agudath Israel of America and the Orthodox Union - are closely following the case and may file briefs in upcoming rounds of the legal battle. The New York Board of Rabbis said it is considering running a symposium to examine the implications of the case.

In the New York case, Chani Lightman, a 38-year-old Orthodox woman, nurse and mother of four daughters, has been trying to obtain a divorce from her husband since 1995. She says her husband, Hylton Lightman, a prominent pediatrician in the Five Towns region of Long Island, has so far refused to give her a get, the Jewish divorce that only a man can issue according to halachah, or Jewish law. He is said to have filed a get with Rabbi Motti Wolmark of Monsey, N.Y., who said, through his secretary at Yeshiva Shaarey Torah, that he had no comment on the matter.

Chani Lightman has been given no opportunity to accept the get if there is one, said her attorney, Daniel Schwartz, and "if her husband believes that she has been unchaste, he is obligated to give her one forthwith."

The Lightmans are in the middle of civil divorce proceedings as well, and the court has awarded Hylton temporary full custody of their children. Chani Lightman said she went to Weinberger, who was her pulpit rabbi, and another rabbi in the community, Tzvi Flaum, in 1995 to discuss her troubled marriage because she was aware that her husband had also spoken with them.

During her separate meetings with one of the rabbis, she revealed that she had stopped going to the mikveh, the ritual bath into which observant women immerse themselves after menstruating and before resuming sexual relations with their husbands, because she wanted no further intimacy with her husband. She also told Flaum, according to the affidavit he submitted to the court, that she had seen another man socially.

The rabbis submitted affidavits on Hylton Lightman's behalf as part of the divorce proceedings, saying that she was not living as an Orthodox woman should. Chani Lightman took the unusual step of suing the two rabbis because they disclosed private information to her husband and to the court without ever getting her permission to do so.

On Nov. 18, Justice David Goldstein ruled that Weinberger owes Chani Lightman damages for causing her harm. In his decision, Goldstein called Weinberger's disclosures not only "improper" but "outrageous and most offensive."

No date has yet been set for either his ruling on the amount the rabbi owes his former congregant, or for Flaum's hearing. The attorney representing them both, Franklyn Snitow, said that he intends to appeal the ruling in the Weinberger case.

Lightman's cases poses several thorny questions, among them, "How private is the information a congregant shares with his or her rabbi?" and "Does a person run the risk of making public the most intimate details of his or her life when they turn to a rabbi for guidance?" The New York court ruling has also raised questions about how involved civil courts should be in deciding whether a rabbi's judgment is correct.

David Zwiebel, director of government affairs for Agudath Israel of America, a group representing fervently Orthodox interests, said he has received a large number of phone calls from concerned rabbis since the ruling was handed down. It is likely that the Agudah will file a friend-of-the-court brief on behalf of the defendants after they appeal, he said.

"The general rule in secular law and halachah is that things said in confidence must be kept in confidence," Zwiebel said, adding, "There are times, though, when the general rule must be breached."

The rabbis in this case were "concerned over the mental and spiritual well-being of the children. The rabbis are entitled to make these sorts of judgments," Zwiebel said.

"If a civil court is saying that they are not, it comes awfully close to the kind of entanglement that the First Amendment is designed to prevent," he said.

Zwiebel said the decision is already having a chilling effect on the ability of rabbis to counsel their congregants because they fear that if they learn anything they feel compelled to report, they might be sued.

If people declare their intention to physically harm themselves or others, the rabbi is obligated to do whatever it takes to stop them, said several experts.

Snitow, the defendants' attorney, maintains that "there was never any expectation of privacy" when Chani Lightman went to talk to them.

"It was never intended as pastoral counseling or a penitent's confession," he said in an interview with JTA. That, said Lightman's attorney, is simply untrue.

The impact of what the rabbis did, said Chani Lightman, has been "like a nightmare."

"I've lost custody of my children, and I've been obliterated (in the community)," she said.

"Other women should not be bamboozled by the rabbis and turned into a pariah."

For Chayie Sieger, the sense of powerlessness came when she learned that 100 Orthodox rabbis she had never met had granted her husband of 26 years a Jewish divorce without her knowledge.

For Chani Lightman, the sense of shock came when she confided in two rabbis about marital problems and then discovered that they had revealed those secrets to her husband and others in their tight-knit religious community.

Stunned by what they saw as betrayals and seeking to restore reputations they say were virtually destroyed, the two women have taken an unheard-of step: they are suing rabbis in American courts of law, their complaints based on the way they were treated by religious courts.

What makes these cases remarkable is that Mrs. Sieger, 45, from Borough Park, Brooklyn, and Mrs. Lightman, 38, from Cedarhurst, on Long Island, remain devoted to their religion, even as the communities around them openly question their bold and, some say, heretical challenges.

''I am religious and feel very strongly about Judaism,'' Mrs. Lightman said. ''But I don't feel this is a representation of what Judaism or religion is. This is simply an abuse of power by some men.''

For
(Name Removed), the sense of powerlessness came when she learned that
100 Orthodox rabbis she had never met had granted her husband of 26
years a Jewish divorce without her knowledge.

For (Name Removed),
the sense of shock came when she confided in two rabbis about marital
problems and then discovered that they had revealed those secrets to her
husband and others in their tight-knit religious community.

Stunned
by what they saw as betrayals and seeking to restore reputations they
say were virtually destroyed, the two women have taken an unheard-of
step: they are suing rabbis in American courts of law, their complaints
based on the way they were treated by religious courts.

What makes these cases remarkable is that (NAME REMOVED), 45, from Borough Park, Brooklyn, and (NAME REMOVED),
38, from Cedarhurst, on Long Island, remain devoted to their religion,
even as the communities around them openly question their bold and, some
say, heretical challenges.

''I am religious and feel very strongly about Judaism,'' (NAME REMOVED)
said. ''But I don't feel this is a representation of what Judaism or
religion is. This is simply an abuse of power by some men.''

While
Orthodox Jews who want a divorce in civil law still have to observe the
same procedures as any other Americans, obtaining a Jewish get, or
divorce, is necessary to remarry within Orthodoxy.

Women have
long complained that Jewish courts, which act like binding arbitration
panels, have favored men, particularly on matrimonial issues. In many
instances, men have refused to grant their wives a get, leaving the
women unable to remarry. Men, conversely, face no such consequences.

But as both Mrs. Sieger and Mrs. Lightman learned, men sometimes obtain a get without their wives' consent or knowledge.

The
two women seem unlikely candidates to challenge rabbis in court. Both
were born into strictly observant Orthodox families, Mrs. Lightman in
the modern Orthodox wing of Jewry, Mrs. Sieger in the Bobover Hasidic
sect, where, in many ways, women are subject to the command of men.

Mrs.
Lightman, a nurse and the mother of four daughters, won a first-round
victory on Nov. 18 when Justice David Goldstein of State Supreme Court
in Queens handed down a summary judgment against a Long Island rabbi,
David Weinberger of Temple Shaaray Tefila in Lawrence.

Mrs.
Lightman had gone to Rabbi Weinberger for marital counseling, and
complains in her suit that he violated clerical confidentiality by
revealing secrets to her husband, Dr. Hylton Lightman, and his lawyer,
information that then showed up in papers filed in a custody dispute.

As
a result, she said, unfounded rumors began to circulate, including a
rumor that she was failing to live by Jewish law and ''seeing a man in a
social situation,'' stories that shook her community. Now, she said,
she is largely ostracized there and attributes the loss of temporary
custody of her daughters, ages 6 to 12, to the suspicions planted about
her.

''I am portrayed as an irreligious woman not eligible to be the custodial parent to my children,'' she said.

Mrs. Lightman would not say how much she was seeking in monetary damages, only that it was ''in the millions.''

Justice
Goldstein sharply condemned Rabbi Weinberger's revelations, which
included the fact that Mrs. Lightman had stopped going to the mikvah, or
ritual purification bath, so that her husband would refrain from having
sex with her.

''In my view, this was not only improper, it was
outrageous and offensive, especially considering the status and stature
of these defendants within the community,'' he wrote in his opinion.

A
second rabbi in whom Mrs. Lightman confided, Tzvi Flaum of Congregation
Kneseth Israel in Far Rockaway, Queens, may face the same claim,
depending on the results of a hearing on Jan. 6.

Franklin H.
Snitow, the lawyer for Rabbi Weinberger and Rabbi Flaum as well as for
Dr. Lightman in the couple's civil divorce case, said he planned to
appeal the judgment.

''Rabbi Weinberger was basically providing
information to both sides, and there was no expectation of
confidentiality.'' Mr. Snitow said. As for government jurisdiction over
religious matters, he said: ''The clergy is not licensed by the state,
and the law does not deal with their activities within the community;
therefore, we believe there is interference with their discharging their
religious obligations.''

The Sieger case involves different legal and religious issues.

Mrs.
Sieger, who is a nursing home administrator, filed suit last month in
Supreme Court in Manhattan against the Union of Orthodox Rabbis of the
United States and Canada; the Bet Din Zedek of America, a rabbinical
court, and five individual rabbis for libel and slander. She is seeking
$13 million in damages.

Her lawsuit revolves around an unusual
instrument of Jewish divorce, called a Heter Meah Rabonim, that the
defendants got for her husband, Chaim Sieger, on the grounds that she
had repeatedly refused to accept a routine get.

But Mrs. Sieger
insists she was the one who first requested a divorce. She said she left
Mr. Sieger in 1995 when their two children were grown and married with
their own families, hoping to quickly dissolve the 26-year marriage. She
said that she consented three times to appear before a rabbinical
court, but that she was never called and was rebuffed when she inquired
about the status of the case.

''I kept responding that I would go
and nothing happened,'' she said. ''Then I got a letter from Chaim's
attorney, Abe Konstam, stating, 'As you are aware, a rabbinical divorce
has already been granted.' ''

Without informing her, the rabbis
had used the Heter Meah Rabonim, which was introduced centuries ago to
give men whose wives are mentally incapacitated, unconscious or
unwilling to accept a get the right to take a second wife. It is not
technically a Jewish divorce but is a way of releasing a man in an
untenable situation from the bonds of marriage. It requires the
signatures of 100 rabbis in three countries attesting to the woman's
inability to accept the get.

Nathan Lewin, a Washington lawyer
who specializes in Federal litigation on religious liberty issues and
who is representing several of the defendants in the Sieger case,
maintains that Mrs. Sieger refused to appear before the Bet din.

''The
courts have repeatedly refused to get involved in second-guessing
rabbinical courts,'' he said. ''If the rabbis follow procedure, you
can't say the result is defamation.''

Moreover, he continued, ''There was no obligation to tell her about the Heter.''

Christopher
Sullivan, a lawyer with the New York firm of Herrick, Feinstein, who
represents Mrs. Sieger, said his client was treated unfairly.

''One
hundred rabbis who never met her and knew nothing about her signed a
Heter accusing her of two specific crimes under Jewish law,'' he said.
''One is that she failed to go to the mikvah or ritual bath while living
with her husband. If she engages in sex while in a state of
uncleanliness she places him in a state of mortal sin, and a woman who
does that cannot serve or prepare food and is not to be trusted in the
raising of children.''

The second crime, he said, was the alleged disregard for the summonses to appear before the Bet din.

''The
Heter was really devastating,'' Mrs. Sieger said. ''I am strangled by
stigma. The choice was, do I remain branded for the rest of my life or
do I try to clear my name?''

Denying that he had ever stood in
the way of a divorce, Mr. Sieger said he found the defamation suit to be
a profound embarrassment.

''Why didn't she take them to a higher
Bet din and let them be sanctioned by their peers?'' he asked. ''Every
organization has a policing mechanism.''

But Rabbi Moshe David
Tendler, professor of Talmudic law at the Rabbi Isaac Elchanon
Theological School, affiliated with Yeshiva University, said: ''There is
no such thing as a higher Bet din. In addition, it is virtually
impossible to convince one Bet din to sit in judgment of another.''

Whatever the outcome of the suits, the anguish and hostility in both cases are palpable.

Mrs.
Lightman says she believes a severe beating she received in her bedroom
when she was asleep in September 1997 is somehow connected to the
divorce. The Nassau County police say the case is still under active
investigation.

She also said her husband had obtained a get without giving it to her or telling her about it.

''I
learned about it,'' she said, ''when my sister-in-law called to tell me
that her divorced sister was introduced to Hylton as being 'the cream
of the crop' as a potential date. I was shocked because I had been
asking him for a get for three years and he always refused.''

Dr.
Lightman, a pediatrician from South Africa, said he was taken aback by
the judge's ruling and described the resulting publicity as ''a total
desecration of Jewish Torah values.'' Asked if he had, in fact, obtained
a get, he said: ''That is so complex a question that it goes beyond
explanation. I cannot answer.''

Despite the sting of rejection
they say they feel from friends, neighbors and, in Mrs. Sieger's case,
business contacts, neither woman intends to abandon Orthodoxy.

Both were raised in insular communities and both married men they met through matchmakers.

Mrs.
Sieger, who grew up and still lives in the Hasidic world of Borough
Park, says that in fact, she supports the very mechanisms that have hurt
her.

''The provision for the Heter is very important,'' she
said. ''I am happy it is in the system, as opposed to other religions
that have nothing like it. My only problem is that it was used to abuse
me.''

Whether other women will take up the cudgels remains to be seen.

''I
don't think this will open the floodgates,'' said Susan Aronoff,
co-director of Agunah Inc., which helps women whose husbands refuse to
grant them a get and is organizing a fund to help Mrs. Lightman pay her
legal expenses. ''But maybe it will make rabbis more careful of their
conduct.''[Photograph]

CHANI LIGHTMAN -- She says a rabbi told
secrets to her husband and his lawyer after she sought marital
counseling. (Angel Franco/The New York Times);

CHAYIE
SIEGER -- ''The choice was, do I remain branded for the rest of my life
or do I try to clear my name?'' (Andrea Mohin/The New York Times)

Rabbi Tzvi Flaum of Far Rockaway To Be Honored For Unique Contribution to Jewish LifeOrthodox Union - February 4, 1999http://www.ou.org/oupr/1999/rabbis2.htm

February
4, 1998, New York, NY: Rabbi Tzvi Flaum of Congregation Kneseth Israel
in Far Rockaway, will be honored at the Orthodox Union's (OU) Rabbinic
Centennial Medallion Awards Dinner on Wednesday, February 24, 1998, at
the Grand Hyatt Hotel, 42nd Street and Lexington Avenue in New York.

In
celebration of its Centennial, the OU will honor Rabbi Flaum as well as
six other outstanding rabbis and their congregations who have made
unique contributions to Orthodox Jewish life in America. Rabbi Dr.
Bernard Lander, President of Touro College, who will also be honored,
will be the keynote speaker.

"Rabbi Flaum is an impressive
community and spiritual leader whose has made an enormous contribution
to Jewish life, " said Mandell I. Ganchrow, M.D., President of the OU.

Serving
as the social and religious nerve center of the Far Rockaway community,
Congregation Kneseth Israel (the "White Shul") provides outstanding
outreach programs for immigrants and the newly observant. A dynamic,
vibrant congregation offering special minyanim for recent Russian
immigrants, the White Shul is a model of inclusiveness and outreach.

A
former professor of Judaic Studies at Stern College, Rabbi Flaum has
smicha from RIETS and an MA in Jewish History from the Bernard Revel
Graduate School. A member of the OU Board of Governors, Rabbi Flaum is
Chairman of the Vaad Harabonim of Far Rockaway and Lawrence is a member
of the Board of Governors of the Association of Orthodox Jewish
Scientists.

"As we celebrate our 100th year, we cannot
overemphasize the importance of rabbis, synagogues and communal
institutions working in tandem to insure a thriving Orthodoxy," said
Rabbi Raphael B. Butler, Executive Vice President of the OU. "The
Orthodox Union acknowledges the synagogue as the focus of Jewish
communal life. Each community is built around a vibrant synagogue led by
a dynamic rabbi. It is that leadership that we are proud to honor,"
continued Rabbi Butler.

In an opinion of first impression issued late last month (11/98), Lightman v. Flaum, Justice David Goldstein of the New York State Supreme Court (Queens County), granted summary judgment on a woman's claim that an Orthodox Rabbi had violated his fiduciary duty of confidentiality by divulging, in affidavits filed to oppose her custody petition in her divorce case, the woman's confidences about her alleged marital infidelities. The Judge stated that damages would be determined by a separate trial at the close of the discovery phase of the proceeding.

Justice Goldstein called the disclosures not only "improper" but "outrageous and most offensive." He also said that there was no religious reason for disclosing Mrs. Lightman's alleged admissions: "[T]here is no justification, religious or otherwise, for disclosing that plaintiff had been seeing men outside the marriage. The alleged negative impact upon the four children, in terms of their level of religious observance as well as their general well-being ... is so general that, in terms of importance, it cannot possibly measure against the overriding state and public interest in preserving confidentiality."

The Judge also sustained Mrs. Lightman's claims of intentional infliction of emotional distress. However, he found that questions of fact as to intent or recklessness precluded an award of summary judgment for the plaintiff, at this time.

Issue

This case presents an issue of first impression in this State, namely, whether the unauthorized disclosure of confidential communications, in violation of the clergy-penitent privilege provided by CPLR 4505, is actionable. The Court concludes, as a matter of law, that breach of the fiduciary duty of confidentiality does state a cognizable claim for relief.

Defendants, Rabbi Tzvi Flaum and Rabbi David Weinberger, have moved, pursuant to CPLR 3211(a)(7), to dismiss the complaint for failure to state a cause of action, in accordance with CPLR 3211(c), this Court notified the parties of its election to convert the motion to one of summary judgment and all parties were afforded an opportunity to and did make additional submissions.

Facts

Plaintiff alleges that, in 1995, she sought religious counseling from each of the defendants, during which she revealed certain matters of an extremely personal and confidential nature. Rabbi Flaum is employed as Rabbi of Congregation Kneseth Israel, 728 Empire Avenue, Far Rockaway, New York. He is also Chairman of the Vaad Harabonim, the Rabbinical Council of Far Rockaway and Lawrence and Co-Chairman of the Vaad Harabonim of Queens. Rabbi Weinberger is employed as Rabbi of Temple Shaaray Tefila, 25 Central Avenue, Lawrence, New York. He was formerly assistant Rabbi of Congregation Kneseth Israel and teaches at the Prospect Park High School and Seminary for Girls Both plaintiff and her husband were members of Kneseth Israel and had also participated in services at Temple of Shaaray Tefila. According to plaintiff, she met with each Rabbi for advice and spiritual guidance and, in confidence, disclosed matters of a personal and intimate nature.

Subsequently, in February 1996, Mrs. Lightman commenced an action for divorce and moved for pendente lite relief, including temporary custody of the four children. In response, defendants submitted affirmations in support of the husband's position as to custody, which set forth the confidential matters that plaintiff had previously communicated and imparted to them. Specifically, the affirmation of Rabbi Flaum contained the following:

"2. Mrs. Lightman admitted to me that she stopped engaging in our religious purification laws since September 1995 and hence, all sexual activity has stopped by her own decision.

3. Mrs. Lightman admitted to me that she was seeing a man in a social setting and admitted, 'I am doing the wrong things.' I spoke to her and counseled her against this in December, 1995."

The affirmation of Rabbi Weinberger set forth the following:

"2. Mrs. Lightman admitted to me that she freely stopped her religious bathing so that, she did not have to engage in any sexual relations with Dr. Lightman.

3. She told me she was not getting fulfillment when I inquired what that meant, she simply answered, he doesn't relate to me. Nothing was stated that amounted to cruel conduct by Dr. Lightman.

4. Her religious behavior has changed. She does not want to adhere to Jewish law despite the fact that she is an Orthodox Jew and her children are being raised Orthodox as well. she has engaged in bizarre behavior.

5. I have no loyalty to either party except to state what I observed and to issue an opinion based on those observations from a religious point of view."

Based upon the foregoing allegations, plaintiff commenced this action for violation of the clergy-penitent privilege and for intentional infliction of emotional distress. In addition, the complaint asserts a cause of action against Rabbi Weinberger for defamation.

Upon a motion to dismiss pursuant to CPLR 3211(a)(7), the court is required to construe the complaint liberally, accepting all of the facts alleged as true and affording plaintiff the benefit of any possible inference. (see, Leon v. Martinez, 84 NY2d 83.) "[T]he criterion is whether the proponent of the pleading has a cause of action, not whether he had stated one ***." (Guggenheimer v. Ginzburg, 43 NY2d 568, 275; see also, Foley v. D'Agostino, 21 AD2d 60, 65.) Upon a motion for summary judgment, it is incumbent upon the court to draw all reasonable inferences in favor of the non-moving party and it may not pass upon issues of credibility. (See, Glick & Dolleck v. Tri-Pac. Export Corp., 22 NY2d 439; 175 Check Cashing Corp. v. Chubb Pac Indem. Group, 95 AD2d 701.)

Upon the conversion of this motion to one for summary judgment, the parties submitted further affirmations. Essentially, plaintiff has reiterated the claims made in the complaint, alleging that it was both improper and actionable for defendants to divulge privileged and sensitive communications which they had received from her.

In opposition, defendants contend that they were compelled by Jewish law to reveal the confidences to plaintiff's husband, his attorney and to the court for the protection of both the husband and the children. Additionally, Rabbi Flaum argues that plaintiff was not seeking spiritual counseling or advice in what he describes as their "encounter" and that a third person was present at the time, namely, plaintiff's mother. This was disclosed at a conference with all parties. According to Rabbi Flaum, Dr. Lightman had advised him that he and his wife were having marital problems -- that she was deviating from Orthodox Judaic tradition and, he believed, was in adulterous relationships. Weeks later plaintiff and her mother appeared a Rabbi Flaum's office and criticized him for speaking to Dr. Lightman, without hearing her side. In the course of that heated exchange, plaintiff admitted "she had stopped engaging in religious purification laws" and was "seeing men in social settings even though she was still married to Dr. Lightman." He admits notifying the husband abut the incident and claims that, in doing so, he was acting in accordance with his obligation as Rabbi and spiritual advisor and, further, he acted to protect the four "innocent" children of the marriage.

Defendants argue that the cause of action for violation of the clergy-penitent privilege is merely a violation of an evidentiary rule; and that the sole remedy is the exclusion of the communication from evidence.

Plaintiff acknowledges that an action for violation of the clergy-penitent privilege has not yet been upheld and that the issue is one of first impression in this State and, as far as appears, in this country. However, by way of analogy to the forgoing privileges, she argues that the clergy has a similar fiduciary duty viz-a-viz the penitent and should be held to the same stringent standard of care as has been imposed upon other professionals, namely, to hold such disclosures sacred and not to reveal confidential communications.

Plaintiff points to the care and diligence by most responsible members of the clergy in safeguarding confidences, as the reason the issue in this case has never arisen. In f act, this Court is aware of only one reported decision which squarely addressed the issue. In Snyder v. Evangelical Orthodox Church, 216 Cal. App. 3d 297, plaintiffs had confessed their adulterous relationship to certain members of the clergy. Although made in confidence, the confession was disclosed to others, including the assembled congregation, the Church Board of Elders and a gathering of priests, ministers, pastors and guests. Plaintiffs asserted claims, inter alia, for breach of fiduciary duty and infliction of emotional distress. In moving to dismiss, defendants argued that the court lacked jurisdiction ver conduct which was "ecclesiastical in nature."

The California court of Appeal for the Sixth District, held that, under certain circumstances, tort liability could be imposed upon a member of the clergy for revealing confidences. In doing so, it recognized that, whether to allow such a claim involved substantial constitutional considerations relating to the First Amendment to the United States Constitution, and held that various factors needed to be taken into account, including whether the acts complained of were taken pursuant to church doctrine and whether the state interest outweighed any concomitant burden on religion.

In Snyder, supra, a four-pronged balancing standard was set forth to determine whether there is a justifiable burden on expression of religious belief in relation to the effect upon significant societal interests. To do so, the government must be in furtherance of some compelling state interest; the burden on expression must be essential to further this interest; the type and level of the burden must be the minimum necessary to achieve the state interest; and the burden must apply to everyone, not merely to those who have a religious belief. In reversing the dismissal for lack of subject matter jurisdiction, the California appellate court remanded the matter for further proceedings, including a determination whether there actually was a religious purpose for the disclosure and, if it was concluded that the conduct qualified as religious," *** the trial court must balance the importance to the state of the interest invaded against the burden which would result from imposing tort liability for such a claim." (supra, at 310 of 216 Cal App 3d.)

Previously, in Wollersheim v. Church of Scientology of California, 260 Cal. App 3d 872, the California Court of Appeal for the Second District, applied the same balancing standard to uphold an action for intentional infliction of emotional distress, concluding in that case that there was a compelling state interest which far outweighed the values to be served by the alleged religious expression. In doing so, however, it observed that "*** not every religious expression is worthy of constitutional protection." (supra, 888 of 260 Cal App 3d.)

In Alexander v. Culp, 1997 WL547951 [Ohio App. 8 Dist.], a decision not yet officially reported, plaintiff had met with defendant minister for marital counseling, whereupon he disclosed in confidence that he had several affairs during this marriage and was currently having an affair. Thereafter, Culp disclosed these confessions to plaintiff's wife and, after opining that plaintiff was a liar and not to be trusted suggested that the wife obtain a restraining order, change the locks on the doors and retain counsel to secure a divorce. Since plaintiff also stated he intended to take the children to another state, the minister suggested that she keep them away from their father. The Ohio appellate court found the factual allegations sufficient to state a viable claim for common law negligence observing:

"Public policy supports an action for breach of confidentiality by a minister. There is a public policy in favor of encouraging a person to seek religious counseling. People expect their disclosures to clergy members to be kept confidential.**** Whether a particular case interferes with First Amendment freedoms can be determined on a case by case basis."

Although Ohio had a statute which prohibited the clergy from testifying as to confidences communicated during religious counseling, the provision had no application to any disclosure outside any legal proceeding. In holding that the facts set forth a cognizable claim for ordinary negligence, not malpractice, the Ohio court observed: "Although the duty not to disclose arose from the clergy/parishioner relationship, the breach of the duty to preserve appellant's confidence neither involved nor compromised any religious tenets."

In our case, defendants claim that, to sustain a cause of action would impinge upon the free exercise of their religious rights, preserved by the First Amendment. Generally, cases have held that the imposition of liability in tort or otherwise, for conduct or activities of a religious society or its members, in furtherance of religious beliefs, is barred where the imposition of liability would result in the abridgement of the free exercise of religion, in violation of the First Amendment. (See, Wisconsin v. Yoder,406 U.S. 205; see also, Serbian Eastern Orthodox Diocese for the United States of America and Canada v. Milivojevich, 426 US 696; Paul v. Watchtower Bible Tract Soc. of New York, 819 F.2d 875; Kenneth R. v. Roman Catholic Diocese of Brooklyn, 229 Ad2d 159; Madsen v. Erwin, 395 Mass 715.) The same holds true where the court would be required to become excessively entangled with religious doctrine and its standards. (see, Schmidt v. Bishop, 779 F. Supp. 321; see also, Langford v. Roman Catholic Diocese of Brooklyn, ___ Misc 2d ___ [NYLJ, July 8, 1998, P. 38 Col. 6]. In such instances, it has been recognized that a court must refrain from determining ecclesiastical questions. (See, Presbyterian Church v. Mary Elizabeth blue Hull Memorial Presbyterian Church, 393 US 440.)

However, it is also well recognized that disputes involving religious entities may be adjudicated if this may be done by applying "neutral principles of law" and without resolving or impinging upon underlying controversies over religious doctrine. (Presbyterian Church v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, supra; Park Slope Jewish Ctr. v. Congregation B'Nai Jacob, 90 NY2d 517; First Presbyt. of Schenectady v. United Presbyt. Church in United States of Am., 62 NY2d 110, at 119-120; see also, Jones v. Wolf, 443 US 595.) These and other cases hld that civil disputes involving religious institutions or persons may be addressed without offending constitutional restrictions, as long as neutral laws of general applicability are employed in the resolution or adjudication.

At the outset, it must be stressed that, while the First Amendment does prohibit the intrusion upon the exercise of religious beliefs, the conduct of a religious entity remains subject to regulation for the protection of society. Employment Div. Dept. of Human Resources of Oregon v. Smith, 494 US 872; see also, Cantwell v. Connecticut, 310 US 296, 304; Kenneth R. v. Roman Catholic Diocese of Brooklyn, supra.) This is especially so where the imposition of liability or sanctions for the conduct complained of is secular in nature, namely, where liability is imposed equally, for religious institutions and parities, as well as for others, and where the basis for such liability may be determined without examination into religious law or policies. (See, Employment Div. Dept. of Human Resources of Oregon v. Smith, supra; Jones v. Trane, 153 Misc 2d 822; Moses v. Diocese of Colorado, 863 P.2d 310.) Thus, the free exercise clause is not an absolute defense where, as here, liability for tortious conduct is sought to be imposed upon members of the clergy. It may only serve as a defense where the alleged tortious conduct was undertaken pursuant to religious principles or doctrine. (See,Kenneth R. v. Roman Catholic Diocese of Brooklyn, supra; Meroni v. Holy Spirit Assn. for the Unification of World Christianity, 119 AD2d 200; Jones v. Trane, supra; Snyder v. Evangelical Orthodox Church, supra; Madsen v. Irwin, supra.)

Even where the conduct is predicated upon religious beliefs, it may nevertheless form the basis for liability where significant societal interests are involved. (See, Cantwell v. Connecticut, supra: Meroni v Holy Spirit Assn. for the Unification of World Christianity, supra.) Thus, it has been held that the intentional torts of the clergy may be actionable, notwithstanding the allegation that they are incidents of religious beliefs. (See, Meroni v. Holly Spirit Ass. for the Unification of World Christianity, supra; Hester v. Barnett, 723 SW2d 544; Bear v. Reformed Menonite Church, 462 Pa 330.) Other courts have sustained causes of action against religious organizations for negligent supervision and retention, upon the ground that a liability determination would not require examination of nay religious doctrine, nor would it inhibit any religious practice. (See, Kenneth R. v. Roman Catholic Diocese of Brooklyn, supra; Jones v. Trane, supra.) In such instances, the First Amendment will not serve as a defense because it is not implicated.

Based upon the foregoing legal principles, in determining whether the First Amendment is a viable defense, the threshold inquiry must be whether the complained of conduct is actually motivated by or involves religious practices or beliefs. (See, Wisconsin v. Yoder, supra.) If it is not, liability may be imposed without raising any constitutional inhibition or restriction. In such case, plainly, there is no entanglement with religion.

Under the circumstances of this case, it is concluded that a valid cause of action does exist for breach of the fiduciary duty of confidentiality, which arises from the violation of the clergy penitent privilege. Absent any religious of First Amendment implication, there is no compelling reason here to shield these Rabbis from liability in tort for revealing such sensitive, personal communications, when other similarly situated professionals are subject to potential liability under statutory provisions analogous in scope and purpose to that at issue here.

It is beyond peradventure that, when one seeks the solace and spiritual advice and guidance of a member of the clergy, whether it be a priest, rabbi or minister, on such sensitive, personal matters as those involved in our case, this is not done as a prelude to an announcement from the pulpit. On this record, it is equally clear that these protectors of the faith, under the guise of religious necessity and the protection of the children and the sanctity of the marital institution, have taken upon themselves the disclosure to others of what, from its very nature and subject, was imparted in confidence, unless the privilege was waived by the presence of some third party, as is claimed by Rabbi Flaum. And, not only were these made to Dr. Lightman, both defendants readily acceded to his request that disclosure be made to his attorneys and to the court in the matrimonial action, so as to influence the determination as to temporary custody and/or visitation.

In my view, this was not only improper, it was outrageous and most offensive, especially considering the status and statute of these defendants within the community, a standard which they readily abdicated here. From what was done, it is palpably clear why this determination is one of apparent first impression - no member of the clergy, with the possible exception of Reverend Culp in Ohio (Alexander v. Culp, supra), would dare breach the sanctity of his or her office to make public the type of confidential, private disclosure at issue in this case.

Moreover, to do so under the guise of religious necessity, conviction or the protection oft eh Torah, is not only wrong, it is outrageous. Under the factual scenario admitted by these defendants, disclosure was not required to prevent Dr. Lightman from violating Jewish law or tradition. Both Rabbis knew that the couple was experiencing marital difficulties when they were told that plaintiff was no longer going to the Mikvah, the ritual bathing to purify the woman during her menstrual period. Clearly, this is a peculiarly sensitive matter, not readily discussed with others, nor in open, public exchanges. Notwithstanding that future marital relations would cause Dr. Lightman to violate Jewish law, neither defendant had a "religious obligation as Rabbi" to make public what had been imparted to them. In lieu of such, all that they had to do was ask the husband whether, notwithstanding their marital difficulties, the parties were still having normal relations. If so or, in the alternative, without such an inquiry, defendants could have emphasized to the husband the importance of ensuring that his wife was still going to the Mikvah. This, however, was not done. Moreover, as is apparent from Rabbi Flaum's affirmation of December 22, 1997, the disclosure was palpably unrelated to any religious doctrine, sine what had been told to defendant was " *** plaintiff admitted that she had stopped engaging in religious purification laws (which resulted in the cessation of all sexual activity with her husband) ***" (emphasis added). Thus, since he had been told there was no sexual relationship, there was no need for disclosure, especially under the pretext of preventing any violation of religious doctrine, unless this was to serve some other make, Orthodox, but equally irrelevant role.

Notwithstanding the foregoing, disclosure in this case hardly equates with the overwhelming public and societal interest in preserving the sanctity of such confidential communications. Plainly, there is no justification, religious or otherwise, for disclosing that plaintiff had been seeing men outside the marriage. The alleged negative impact upon the four children, in terms of "their level of religious observance as well as their general well being" (Affirmation, Rabbi Flaum, dated December 22, 1997), is so general that, in terms of importance, it cannot possibly measure against the overriding state and public interest in preserving confidentiality. The same hold true with respect to the alleged "religious obligation" to prevent the husband from having relations with a woman "who admittedly socialized with other men" or, in terms of the children, "to shield them from their mother's improper conduct." To acknowledge such would improperly and unwisely create a standard for these defendants, as Orthodox Rabbis, different from that followed by the rest of society.

Thus, it is readily apparent here that the disclosure, under the circumstances of this case, is actionable and entitles plaintiff to partial judgment on liability, unless, as noted, the privilege has been waived by the presence of a third person, which would affect the confidentiality of the communication. Inasmuch as neither defendant has identified any justifiable religious obligation or basis for revealing these communications, as a matter of law, the First Amendment is not a defense. The only factual issues raised are by Rabbi Flaum, namely, that the communications did not occur in the context of plaintiff seeking spiritual counseling and that a third person was present, which would affect the privileged nature of the communication.

While it has been recognized that the clergy-penitent privilege arises only where the communication is made in confidence and for the purpose of obtaining spiritual guidance (People v. Cormona, 82 NY2d 603; People v. Drelich, 123 AD2d 441), no facts have been adduced, sufficient to raise a genuine factual issue, that the communication was not of the usual kind between a spiritual leader, as clergy, and a member of the congregation. The bare, conclusory claim that the meeting was not spiritual in nature, without some evidentiary substantiation, is insufficient and will not preclude summary judgment relief.

Thus, in the absence of some affirmative proof that what Rabbi Flaum refers to as an "encounter" with plaintiff was something other than a meeting between clergy and penitent, to discuss a particular matter or to secure critical advice and guidance, the objection to confidentiality must be rejected, subject to the presence of some third person, which , as noted, could impact upon the privileged nature of the communication. This, however, is an issue raised only by defendant Flaum and will not preclude partial summary judgment relief as against defendant Weinberger. There is no suggestion or proof on this record of any social or other relationship between plaintiff and either defendant sufficient to raise a genuine issue that the meetings were not for spiritual advice or guidance as one would expect between a religious leader and a member of the congregation.

As to defendant Flaum, as noted, the only issued which merits consideration in terms of trial is the claim that the presence of another affected the privileged nature of the communication. This, in my view, is a most limited issue and one which lends itself to treatment, under CPLR 3212(c) and 3211(c), to the direction of an "immediate trial." The narrow factual issue directly impacts upon the privileged nature of the communication and, raised as it is, on defendant's motion to dismiss pursuant to CPLR 32211(a)(7), converted by this Court, upon appropriate notice, to one for summary judgment, is peculiarly suited to the direction of an immediate trial (see, Book 7B, McKinney's Cons. Laws of NY, Practice Commentaries by David D. Siegel, C3212:22, p. 329 and C3211:47, pp. 63-64), which shall be held forthwith.

For this purpose, the parties are directed to appear before this Court, on November 30, 1998, at 10:00 A.M., for a trial on the foregoing factual issue, the determination of which will result in either, (1) summary judgment to plaintiff on liability under the first cause of action or, (2) summary disposition in favor of defendant Flaum, dismissing the first cause of action, should it be found that a third person was present at the time, which impacts upon the confidentiality of the communication.

Inasmuch as this issue has not been raised as to defendant Weinberger, on this record, plaintiff is entitled to partial summary judgment on liability on the second cause of action which shall proceed to trial on damages following completion of nay discovery and pretrial proceedings and the placement of the action on the calendar by the service and filing of a note of issue and payment of any necessary fees.

Defendants' contention is without merit that, since the communications were revealed in the context of a judicial proceeding, they are entitled to protection. No authority or legal basis is offered to accord any degree of immunity for breach of fiduciary duty simply because it occurred in a judicial proceeding. While there is a valid basis for not permitting defamation claims to proceed and for immunity to be accorded defamatory statements made in the context of a judicial proceeding, those reasons are inapplicable here. If the privilege applies, plaintiff is entitled to confidentiality, whether it be in a sealed matrimonial proceeding or in a public or private forum. The privilege belongs to any may only be waived by her.

b) Intentional Infliction of Emotional Distress.

The third and fourth causes of action sound in intentional infliction of emotional distress, and are alleged against Flaum and Weinberger, respectively. To state a cause of action for intentional infliction of emotional distress, the conduct complained of must be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." (Fischer v. Maloney, 43 NY2d 553, 557, quoting Restatement Torts 2d 46, subd [1]; comment d; see also, Freihofer v.Hearst Corp., 65 NY2d 135, 143.) The conduct must be of such a nature that "*** so transcends the bounds of decency as to be regarded as atrocious and intolerable in a civilized society." (Freihofer v. Hearst Corp., supra, at 143, see also, Murphy v. American Home Prods., 58 NY2d 293, 303; Fischer v. Maloney, supra at 557.) More must be involved than hurt feelings; mere insults, indignities, threats or annoyances are insufficient. (See Owen v. Leventritt, 174 AD2d 471, lv to appeal denied 79 NY2d 751; Lincoln First Bank of Rochester v. Barstro & Associates Contracting,Inc. 49 AD2d 1025.) Intent or recklessness is an essential element of the cause of action.

In our case, plaintiff contends that the disclosure of privileged communications made to a Rabbi by a penitent, done with malicious intent, meets this stringent standard. This Court agrees. Bearing in mind the sanctity to be accorded such communications between clergy and penitent, and the necessity for confidentiality in conjunction with such spiritual counseling, without the fear of any reprisal or disclosure, it is both outrageous and intolerable that such communications would be revealed, even where, as here, this occurs in part in the context of a judicial proceeding. In my view, the conduct so transcends the bounds of decency as to be regarded as both intolerable and atrocious, within the standard expressed in Freihofer v. Hearst Corp., supra.

Thus, the motion to dismiss or for summary judgement as to the third and fourth causes of action, for intentional infliction of emotional distress, is denied. Although cognizable claims are stated, factual issues do preclude summary resolution, including, inter alia, intent or recklessness, a critical element of the cause of action and one which cannot be finally disposed of on this record. Moreover, although the cause of action is one governed by a one-year statute of limitations (CPLR 214[3]; Gallagher v. Directors Guild of America, Inc. 144 AD2d 261, lv to appeal denied 73 NY2d 708; Goldner v. Sullivan, Gough, Skipworth, Summers & Smith, 105 AD2d 1149, 1151), the limitations issue has not been raised or addressed on this record.

(c) Defamation

The fifth cause of action against defendant Rabbi Weinberger for defamation must be dismissed. The alleged defamatory statements were set forth in the affirmation of defendant, which was submitted in the context of the marital proceeding to determine temporary child custody. "A written statement *** in the course of a Judicial proceeding is absolutely privileged if, by any view or under any circumstances, it may be considered pertinent to the litigation." (Joseph v. Larry Dorman, P.C., 177 AD2d 618; see also, Martirano v. Frost, 25 NY2d 505.)

Clearly, the statements were pertinent to the litigation in that they were intended to reflect upon plaintiff's fitness to be a good mother. Plaintiff claims that the statements fall without the scope of the privilege, since they must have been discussed and, therefore, published to her husband and/or his attorney prior to their having been reduced to writing for submission on the motion. She contends that this publication is not subject to any privilege. However, it is patently clear from the complaint that the statements, whenever published, were made "in connection with the above action for divorce." (Plaintiff's Complaint, 66.) The absolute privilege is not limited to statements made or documents used in open court. (See, Klein v. McGauley, 29 AD2d 418.) Thus, the statements are absolutely privileged as made for the purpose of litigation and may not be the subject of a claim for defamation. Accordingly, the fifth cause of action for defamation as against defendant Weinberger is dismissed.

Conclusion

Accordingly, defendants' motion is granted only to the extent that, (1) partial summary judgement is granted to plaintiff on the second cause of action as against defendant Weinberger on the issue of liability, for breach of the fiduciary duty of confidentiality; (2) partial summary judgment is denied as to defendant Flaum on the first cause of action, and final disposition on that branch of the motion is held in abeyance, pending an immediate trial to be held as directed herein on the limited factual issue, namely, whether a third party was present at the time of the alleged confidential communication between plaintiff and Rabbi Flaum; (3) the motion is granted and the fifth cause of action for defamation as against defendant Weinberger is dismissed; and (4) the motion is otherwise denied.

Recently, a maelstrom of controversy has been whipped up by a Long Island woman's accusation against two area Orthodox rabbis over the issue of rabbinic confidentiality. The woman, Chani Lightman, consulted the rabbis while going through a divorce several years ago. As a result of her conversations and the Rabbis' subsequent actions, Lightman, a nurse and mother of four, has become the focal point of a battle in which the nature of Orthodox rabbinic interaction with congregants has become a matter of contention.

Mrs. Lightman claims that while arranging for her husband to provide her with a Get, or Jewish bill of divorce, she met with two community rabbis who were acquainted with her husband and his position in the case. During the two separate meetings, Mrs. Lightman confided that she no longer practiced taharat hamishpacha (family purity laws) as she was no longer intimate with her spouse. Subsequently, the two rabbis, Rabbi Dovid Weinberger of Congregation Shaarei Tefilah of Lawrence and Rabbi Tzvi Flaum of the White Shul in Far Rockaway, filed an affidavit in support of Dr. Hylton Lightman, Chani's soon to be ex-husband. Their affidavit concluded that the courts should be sympathetic to Dr. Lightman's case as his wife is no longer a practicing Orthodox woman.

Mrs. Lightman took the offensive, suing the rabbis for breach of confidentiality. Despite a recent ruling in the case against Rabbi Weinberger in which the judge, David Goldstein, called the rabbi's disclosure "outrageous and most offensive," the case is by no means over. Franklyn Snitow, who has a long history of involvement in legal proceedings involving Orthodox Jews, is the defense council for the accused rabbis. He plans to appeal the ruling and in the meantime both he and his clients have remained silent on the case saying only that "there was never any expectation of privacy." They insist that Mrs. Lightman was aware that her meetings with the rabbis were never intended "as pastoral counseling or a penitent's confession." Nonetheless, organizations from across the Jewish spectrum, from the New York Board of Rabbis (which plans to hold a "symposium" on the confidentiality issue in the near future) to the right wing Agudath Israel (which plans to file a friend-of-the-court brief on behalf of the defendants) have had their say on the issue.

At the heart of the debate is the serious question of what constitutes the rabbi-congregant relationship. Catholicism, which includes the precept of the confessional in its theology, has been viewed by US courts as possessing an inviolate confidentiality in the priest-penitent relationship. This special relationship is not, however, extended by the courts to Protestant ministers nor, to this point, Orthodox Jewish rabbis.

Rabbi Dr. Moshe David Tendler, a RIETS Rosh Yeshiva, had extensive contact with the issue of confidentiality in the early 80's. He believes that the issue of rabbi-congregant confidentiality is a multi-textured one, and there should be no hasty rush to judgement in the case of the two rabbis. Rabbi Tendler cites the Tarasof case in which a psychiatrist was repeatedly told by his patient that he would kill his wife. There, the counselor, albeit in a secular setting, was held liable by the courts for not preventing a crime despite the existing rules governing confidentiality.

Similarly, in the rabbi-congregant setting, not only criminal behavior but serious violations of halakha may similarly necessitate the breach of confidentiality. Nonetheless, Rabbi Tendler cautions that if the woman was not planning to have marital relations with her husband, there was no violation of halakha, per se, if she did not go to the mikvah, or ritual immersion bath. However, Rav Tendler says that he does not know enough about the specifics of the case to definitively state that the rabbis were unjustified in breaching confidentiality.

"Whether the Rabbi's had the status of counselors [and are thus subject to confidentiality rules] depends in what context she came to them. If it was just to discuss the divorce, that's not necessarily counseling. Its not at all clear from the Court papers in what context she came to the rabbis. I don't know what the rabbis' position was. Certainly the fact that Snitow wanted the case thrown out is indicative of how deeply the rabbonim felt in regards to their innocence."

In purely halakhic terms, there appears to exist the possibility of confidentiality in the rabbi-congregant relationship. Michael Rothschild, Director of the Chofetz Chaim Heritage Foundation, has commented previously on this issue. He stated that the laws of Lashon Harah, or religiously proscribed slander,"can be used and interpreted very subjectively so they therefore need a lot of thought." Other routes in establishing a definitive, halakhic confidentiality run into problems in terms of drawing up practical guidelines.

Nonetheless, it appears that many Orthodox rabbis believe that the laws of confidentiality can be broken when a congregant person expresses a desire to harm himself or others. The crucial question in this particular case then, to many Orthodox rabbis, may be whether Mrs. Lightman intended to cause harm to herself or to others.

This
case presents an issue of first impression in this State, namely,
whether the unauthorized disclosure of confidential communications, in
violation of the clergy-penitent privilege provided by CPLR 4505, is
actionable. The court concludes, as a matter of law, that breach of the
fiduciary duty of confidentiality does state a cognizable claim for
relief.

Defendants, Rabbi Tzvi Flaum and Rabbi David Weinberger,
have moved, pursuant to CPLR 3211 (a) (7), to dismiss the complaint for
failure to state a cause of action. In accordance with CPLR 3211 (c),
this court notified the parties of its election to convert the motion to
one for summary judgment and [*1009] all parties were [***2] afforded
an opportunity to and did make additional submissions.

FACTS

Plaintiff
alleges that, in 1995, she sought religious counseling from each of the
defendants, during which she revealed certain matters of an extremely
personal and confidential nature. Rabbi Flaum is employed as Rabbi of
Congregation Kneseth Israel, 728 Empire Avenue, Far Rockaway, New York.
He is also Chairman of the Vaad Harabonim, the Rabbinical Council of Far
Rockaway and Lawrence and Co-Chairman of the Vaad Harabonim of Queens.
Rabbi Weinberger is employed as Rabbi of Temple Shaaray Tefila, 25
Central Avenue, Lawrence, New York. He was formerly Assistant Rabbi of
Congregation Kneseth Israel and teaches at the Prospect Park High School
and Seminary for Girls. Both plaintiff and her husband were members of
Kneseth Israel and had also participated in services at Temple of
Shaaray Tefila. According to plaintiff, she met with each Rabbi for
advice and spiritual guidance and, in confidence, disclosed matters of a
personal and intimate nature.

Subsequently, in February 1996,
Mrs. Lightman commenced an action for divorce and moved for pendente
lite relief, including temporary custody of the four children. [***3] In
response, defendants submitted affirmations in support of the husband's
position as to custody, which set forth the confidential matters that
plaintiff had previously communicated and imparted to them.
Specifically, the affirmation of Rabbi Flaum contained the following:

"2.
Mrs. Lightman admitted to me that she stopped engaging in our religious
purification laws since September 1995 and hence, all sexual activity
has stopped by her own decision.

"3. Mrs. Lightman admitted to me
that she was seeing a man in a social setting and admitted, 'I am doing
the wrong things.' I spoke to her and counseled her against this in
December, 1995."

The affirmation of Rabbi Weinberger set forth the following:

"2.
Mrs. Lightman admitted to me that she freely stopped her religious
bathing so that ... she did not have to engage in any sexual relations
with Dr. Lightman.

"3. She told me she was not getting
fulfillment when I inquired what that meant, she simply answered, he
doesn't relate to me. Nothing was stated that amounted to cruel conduct
by Dr. Lightman.

[*1010]

"4. Her religious behavior has
changed. She does not want to adhere to Jewish law despite the fact that
she is [***4] an Orthodox Jew and her children are being raised
Orthodox as well. She has engaged in bizarre behavior.

"5. I have
no loyalty to either party except to state what I observed and to issue
an opinion based on those observation[s] from a religious point of
view. "

Based upon the foregoing allegations, plaintiff commenced
this action for violation of the clergy-penitent privilege and for
intentional infliction of emotional distress. In addition, the complaint
asserts a cause of action against Rabbi Weinberger for defamation.

Upon
a motion to dismiss pursuant to CPLR 3211 (a) (7), the court is
required to construe the complaint liberally, accepting all of the facts
alleged as true and affording plaintiff the benefit of any possible
inference. [**566] ( See, Leon v Martinez, 84 NY2d 83.) "[T]he criterion
is whether the proponent of the pleading has a cause of action, not
whether he has stated one". ( Guggenheimer v Ginzburg, 43 NY2d 268, 275;
see also, Foley v D'Agostino, 21 AD2d 60, 65.) Upon a motion for
summary judgment, it is incumbent upon the court to draw all reasonable
inferences in favor of [***5] the nonmoving party and it may not pass
upon issues of credibility. (See, Glick & Dolleck v Tri-Pac Export
Corp., 22 NY2d 439; 175 Check Cashing Corp. v Chubb Pac. Indem. Group,
95 AD2d 701.)

Upon the conversion of this motion to one for
summary judgment, the parties submitted further affirmations.
Essentially, plaintiff has reiterated the claims made in the complaint,
alleging that it was both improper and actionable for defendants to
divulge privileged and sensitive communications which they had received
from her.

In opposition, defendants contend that they were
compelled by Jewish law to reveal the confidences to plaintiff's
husband, his attorney and the court for the protection of both the
husband and the children. Additionally, they argue that plaintiff was
not seeking spiritual counseling or advice in what Rabbi Flaum describes
as their "encounter" and both claim that a third person was present at
the time: as to Flaum, plaintiff's mother and, as to Weinberger,
plaintiff's friend, Yael Hirsh. According to Rabbi Weinberger, plaintiff
described "the most intimate details of her marriage" in the presence
of her friend, which surprised him. [***6] According to Rabbi Flaum, Dr.
Lightman advised him that he and his wife were having marital
problems--that she was deviating from Orthodox tradition [*1011] and, he
believed, was in "adulterous relationships". Weeks later, plaintiff and
her mother appeared at his office and berated him for speaking to Dr.
Lightman. In the course of the heated exchange, plaintiff admitted "she
had stopped engaging in religious purification laws" and was "seeing men
in social settings even though she was still married to Dr. Lightman."
Both defendants admit notifying the husband and claim that, in doing so,
they were acting in accordance with their obligation as Rabbi and
spiritual advisor and, further, that this was to protect the four
"innocent" children of the marriage.

Defendants argue that the
causes of action for violation of the clergy- penitent privilege must be
dismissed since no private cause of action exists. They claim that
breach of the privilege is merely a violation of an evidentiary rule,
and that the sole remedy is the exclusion of the communication from
evidence.

Plaintiff acknowledges that an action for violation
of the clergy-penitent privilege has not as yet been upheld and that
the issue is one of first impression in this State and, as far as
appears, in this country. However, by way of analogy to the [*1012]
foregoing privileges, she argues that the clergy has a similar fiduciary
duty vis--vis the penitent and should be held to the same stringent
standard of care as has been imposed upon other professionals, namely,
to hold such disclosures sacred and not to reveal confidential
communications.

Plaintiff points to the care and diligence by
most responsible members of the clergy in safeguarding confidences, as
the reason the issue in this case has never arisen. In fact, this court
is aware of only one reported decision which squarely addressed the
issue. In Snyder v Evangelical Orthodox Church (216 Cal App 3d 297, 264
Cal Rptr 640) plaintiffs had confessed their adulterous relationship to
certain members of the clergy. [***9] Although made in confidence, the
confession was disclosed to others, including the assembled
congregation, the Church Board of Elders and a gathering of priests,
ministers, pastors and guests. Plaintiffs asserted claims, inter alia,
for breach of fiduciary duty and infliction of emotional distress. In
moving to dismiss, defendants argued that the court lacked jurisdiction
over conduct which was "ecclesiastical in nature".

The California
Court of Appeal for the Sixth District held that, under certain
circumstances, tort liability could be imposed upon a member of the
clergy for revealing confidences. In doing so, it recognized that
whether to allow such a claim involved substantial constitutional
considerations relating to the First Amendment to the United States
Constitution, and held that various factors needed to be taken into
account, including whether the acts complained of were taken pursuant to
church doctrine and whether the State interest outweighed any
concomitant burden on religion.

In Snyder (supra), a four-pronged
balancing standard was set forth to determine whether there is a
justifiable burden on expression of religious belief in relation [***10]
to the effect upon significant societal interests. To do so, the
government must be in furtherance of some compelling State interest; the
burden on expression must be essential to further this interest; the
type and level of the burden must be the minimum necessary to achieve
the State interest; and the burden must apply to everyone, not merely to
those who have a religious belief. In reversing the dismissal for lack
of subject matter jurisdiction, the California appellate court remanded
the matter for further proceedings, including a determination whether
there actually was a religious purpose for the disclosure and, if it was
concluded that the conduct qualified as religious expression, "the
trial court must balance the importance to the state of the [*1013]
interest invaded against the burden which would result from imposing
tort liability for such a claim." ( Snyder v Evangelical Orthodox
Church, supra, 216 Cal App 3d, at 310, 264 Cal Rptr, at 647.)

Previously,
in Wollersheim v Church of Scientology (212 Cal App 3d 872, 66 Cal Rptr
2d 1) the California Court of Appeal for the Second District applied
the same balancing standard to uphold [***11] an action for intentional
infliction of emotional distress, concluding in that case that there was
a compelling State interest which far outweighed the values to be
served by the alleged religious expression. In doing so, however, it
observed that "not every religious expression is worthy of
constitutional protection." (Supra, 212 Cal App 3d, at 888, 66 Cal Rptr
2d, at 10.)

In Alexander v Culp (124 Ohio App 3d 13, 705 NE2d
378) plaintiff had met with defendant minister for marital counseling,
whereupon he disclosed in confidence that he had several affairs during
his marriage and was currently having an affair. Thereafter, Culp
disclosed these confessions to plaintiff's wife and, after opining that
plaintiff was a liar and not to be trusted, suggested that the wife
obtain a restraining order, change the locks on the doors and retain
counsel to secure a divorce. Since plaintiff also stated he intended to
take the children to another State, the minister suggested that she keep
them away from their [**568] father. The Ohio appellate court found the
factual allegations sufficient to state a viable claim for common-law
negligence, observing: "Public [***12] policy supports an action for
breach of confidentiality by a minister. There is a public policy in
favor of encouraging a person to seek religious counseling. People
expect their disclosures to clergy members to be kept confidential ...
Whether a particular case interferes with First Amendment freedoms can
be determined on a case-by-case basis." (Supra, 124 Ohio App 3d, at 19,
705 NE2d, at 382.) Although Ohio had a statute which prohibited the
clergy from testifying as to confidences communicated during religious
counseling, the provision had no application to any disclosure outside
any legal proceeding. In holding that the facts set forth a cognizable
claim for ordinary negligence, not malpractice, the Ohio court observed:
"Although the duty not to disclose arose from the clergy/parishioner
relationship, the breach of the duty to preserve appellant's confidences
neither involved nor compromised any religious tenets." (Supra, 124
Ohio App 3d, at 19, 705 NE2d, at 382.)

In our case, defendants
claim that to sustain a cause of actionwould impinge upon the free
exercise of their religious [*1014] rights, preserved by the First
Amendment. Generally, [***13] cases have held that the imposition of
liability in tort or otherwise, for conduct or activities of a religious
society or its members, infurtherance of religious beliefs, is barred
where the imposition of liability would result in the abridgement of the
free exercise of religion, in violation of the First Amendment. (See,
Wisconsin v Yoder, 406 US 205; see also, Serbian Orthodox Diocese v
Milivojevich, 426 US 696; Paul v Watchtower Bible & Tract Socy., 819
F2d 875; Kenneth R. v Roman Catholic Diocese, 229 AD2d 159; Madsen v
Erwin, 395 Mass 715, 481 NE2d 1160.) The same hold true where the court
would be required to become excessively entangled with religious
doctrine and its standards. (See, Schmidt v Bishop, 779 F Supp 321; see
also, Langford v Roman Catholic Diocese, 177 Misc 2d 897.) In such
instances, it has been recognized that a court must refrain from
determining ecclesiastical questions. (See, Presbyterian Church v Hull
Church, 393 US 440.)

However, it is also well recognized that
disputes involving religious entities may be adjudicated [***14] if this
may be done by applying "neutral principles of law" and without
resolving or impinging upon underlying controversies over religious
doctrine. ( Presbyterian Church v Hull Church, supra; Park Slope Jewish
Ctr. v Congregation B'Nai Jacob, 90 NY2d 517; First Presbyt. Church v
United Presbyt. Church, 62 NY2d 110, 119-120; see also, Jones v Wolf,
443 US 595.) These and other cases hold that civil disputes involving
religious institutions or persons may be addressed without offending
constitutional restrictions, as long as neutral laws of general
applicability are employed in the resolution or adjudication.

At
the outset, it must be stressed that, while the First Amendment does
prohibit the intrusion upon the exercise of religious beliefs, the
conduct of a religious entity remains subject to regulation for the
protection of society. (See, Employment Div., Ore. Dept. of Human
Resources v Smith, 494 US 872; see also, Cantwell v Connecticut, 310 US
296, 304; Kenneth R. v Roman Catholic Diocese, supra.) This is
especially so where the imposition of liability or sanctions [***15] for
the conduct complained of is secular in nature, namely, where liability
is imposed equally, for religious institutions and parties, as well as
for others, and where the basis for such liability may be determined
without examination into religious law or policies. (See, Employment
Div., Ore. Dept. of Human Resources v Smith, supra; Jones v Trane, 153
Misc 2d 822; Moses v Diocese of Colorado, 863 P2d 310 [Colo].) Thus, the
free exercise clause is not [*1015] an absolute [**569] defense where,
as here, liability for tortious conduct is sought to be imposed upon
members of the clergy. It may only serve as a defense where the alleged
tortious conduct was undertaken pursuant to religious principles or
doctrine. (See, Kenneth R. v Roman Catholic Diocese, supra; Meroni v
Holy Spirit Assn. for Unification of World Christianity, 119 AD2d 200;
Jones v Trane, supra; Snyder v Evangelical Orthodox Church, supra;
Madsen v Irwin, supra.)

Even where the conduct is predicated upon
religious beliefs, it may nevertheless form the basis for liability
where significant societal [***16] interests are involved. (See,
Cantwell v Connecticut, supra; Meroni v Holy Spirit Assn. for
Unification of World Christianity, supra.) Thus, it has been held that
the intentional torts of the clergy may be actionable, notwithstanding
the allegation that they are incidents of religious beliefs. (See,
Meroni v Holy Spirit Assn. for Unification of World Christianity, supra;
Hester v Barnett, 723 SW2d 544 [Mo]; Bear v Reformed Mennonite Church,
462 Pa 330, 341 A2d 105.) Other courts have sustained causes of action
against religious organizations for negligent supervision and retention,
upon the ground that a liability determination would not require
examination of any religious doctrine, nor would it inhibit any
religious practice. ( See, Kenneth R. v Roman Catholic Diocese, supra;
Jones v Trane, supra.) In such instances, the First Amendment will not
serve as a defense because it is not implicated.

Based upon the
foregoing legal principles, in determining whether the First Amendment
is a viable defense, the threshold inquiry must be whether the
complained of conduct is actually [***17] motivated by or involves
religious practices or beliefs. (See, Wisconsin v Yoder, supra.) If it
is not, liability may be imposed without raising any constitutional
inhibition or restriction. In such case, plainly, there is no
entanglement with religion.

Under the circumstances of this case,
it is concluded that a valid cause of action does exist under CPLR
4505, for breach of the fiduciary duty of confidentiality, which arises
from the violation of the clergy-penitent privilege. Absent any
religious or First Amendment implication, there is no compelling reason
here to shield these Rabbis from liability in tort for revealing such
sensitive, personal communications, when other similarly situated
professionals are subject to potential liability under statutory
provisions analogous in scope and purpose to that at issue here.

It
is beyond peradventure that, when one seeks the solace and spiritual
advice and guidance of a member of the clergy, [*1016] whether it be a
priest, rabbi or minister, on such sensitive, personal matters as those
involved in our case, this is not done as a prelude to an announcement
from the pulpit. On this record, [***18] it is equally clear that these
protectors of the faith, under the guise of religious necessity, the
protection of the children and the sanctity of the marital institution,
have taken upon themselves the disclosure to others of what, from its
very nature and subject, was imparted in confidence, unless the
privilege was waived by the presence of some third party or, from the
nature of the meeting, the disclosure and communication was not made to
the Rabbis in their spiritual capacity. (See, People v Drelich, 123 AD2d
441, 443.) And, not only were disclosures made to Dr. Lightman, both
defendants readily acceded to his request that they be repeated to
counsel and to the court in the matrimonial action, so as to influence
the issue of temporary custody and/or visitation.

In my view,
this was not only improper, it was outrageous and most offensive,
especially considering the stature of these defendants within the
community, a standard which they readily abdicated here. From what was
done, it is palpably clear why this determination is one of apparent
first impression--no member of the clergy, with the possible exception
of Reverend Culp in Ohio ( Alexander v Culp, 124 Ohio App 3d 13, 705
NE2d 378, [***19] supra), would dare breach the sanctity of his or her
office to make public the type of confidential, private disclosures at
issue in this case. And, while both profess that religious law
"compelled" disclosure, to the contrary, both were bound [**570] by
civil law, which mandated strict confidentiality. After all, the
privilege belongs to the penitent, not the clergy, and must be honored.

Moreover,
to violate such basic rights under the guise of religious necessity,
conviction or the protection of the Torah is not only wrong, it is
outrageous. Under the factual scenario admitted by these defendants,
disclosure was not required to prevent Dr. Lightman from violating
Jewish law or tradition. Both defendants knew that the couple was
experiencing marital difficulties when they were told that plaintiff was
no longer going to the Mikvah, the ritual bathing to purify the woman
during her menstrual period. Clearly, this is a peculiarly sensitive
matter, not readily discussed with others, nor in open, public
exchanges. Notwithstanding that future marital relations would cause Dr.
Lightman to violate Jewish law, neither defendant had a "religious
obligation as a Rabbi" to make [***20] public what had been imparted to
them. In lieu of such, all that [*1017] they had to do was ask the
husband whether, notwithstanding their marital difficulties, the parties
were still having normal relations. If so or, in the alternative,
without such an inquiry, defendants could have emphasized to the husband
the importance of ensuring that his wife was still going to the Mikvah.
This, however, was not done. Moreover, as is apparent from Rabbi
Flaum's affirmation of December 22, 1997, the disclosure was palpably
unrelated to any religious doctrine, since what had been told to
defendant was that "plaintiff admitted that she had stopped engaging in
religious purification laws (which resulted in the cessation of all
sexual activity with her husband)" (emphasis added). Thus, since he had
been told there was no sexual relationship, there was no need for
disclosure, especially under the pretext of preventing any violation of
religious doctrine, unless this was to serve some other male, Orthodox,
but equally irrelevant role.

Notwithstanding the foregoing,
disclosure in this case hardly equates with the overwhelming public and
societal interest in preserving the sanctity of [***21] such
confidential communications. Plainly, there is no justification,
religious or otherwise, for disclosing that plaintiff had been seeing
men outside the marriage. The alleged negative impact upon the four
children, in terms of "their level of religious observance as well as
their general well being" (affirmation, Rabbi Flaum, dated Dec. 22,
1997), is so general that, in terms of importance, it cannot possibly
measure against the overriding State and public interest in preserving
confidentiality. The same holds true with respect to the alleged
"religious obligation" to prevent the husband from having relations with
a woman "who admittedly socialized with other men" or, in terms of the
children, "to shield them from their mother's improper conduct. " To
acknowledge such would improperly and unwisely create a standard for
these defendants, as Orthodox Rabbis, different from that followed by
the rest of society.

Thus, it is readily apparent here that the
disclosure, under the circumstances of this case, is actionable and
would entitle plaintiff to prevail on liability, unless the privilege
had been waived by the presence of a third person, or the nature of the
meeting was such that [***22] the communication was not made to the
Rabbis in their spiritual capacity or to obtain spiritual guidance. (
People v Drelich, 123 AD2d 441, supra; see also, People v Carmona, 82
NY2d 603.) Plainly, these are factual issues, which must await the trier
of the facts and are inappropriate for final resolution upon motion for
summary judgment. As [*1018] noted, inasmuch as neither defendant has
identified any justifiable religious obligation or basis for revealing
these communications, as a matter of law, the First Amendment is not a
defense.

Equally without merit is the contention that, since the
communications were revealed in the context of a judicial proceeding,
they are entitled to protection. No authority or legal basis is offered
to accord any degree of immunity for breach of fiduciary duty simply
because it occurred in a judicial proceeding. While there is a valid
basis for not permitting defamation claims to proceed and for immunity
to be accorded defamatory statements made in the context of a judicial
[**571] proceeding, those reasons are inapplicable here. If the
privilege applies, plaintiff is entitled to confidentiality, whether
[***23] it be in a sealed matrimonial proceeding or in a public or
private forum. The privilege belongs to and may only be waived by her.

Accordingly,
upon the foregoing, the motion to dismiss or for summary judgment as to
the first and second causes of action for breach of the fiduciary duty
of confidentiality is granted in terms of liability only to the extent
of limiting, clarifying and defining the factual issues for trial,
namely, whether the privilege had been waived by the presence of a third
person, and whether the nature of the meeting was such that the
communications and disclosures were made to the Rabbis in their
spiritual capacity or to obtain spiritual guidance, and is otherwise
denied.

(b) Intentional Infliction of Emotional Distress

The
third and fourth causes of action sound in intentional infliction of
emotional distress, and are alleged against both Flaum and Weinberger,
respectively. To state a cause of action for intentional infliction of
emotional distress, the conduct complained of must be " 'so outrageous
in character, and so extreme in degree, as to go beyond all possible
bounds of decency, and to be regarded as atrocious, and utterly
intolerable in a civilized [***24] community' ". ( Fischer v Maloney, 43
NY2d 553, 557, quoting Restatement [Second] of Torts ß 46 [1], comment
d; see also, Freihofer v Hearst Corp., 65 NY2d 135, 143.) The conduct
must be of such a nature that it "so transcends the bounds of decency as
to be regarded as atrocious and intolerable in a civilized society". (
Freihofer v Hearst Corp., supra, at 143; see also, Murphy v American
Home Prods. Corp., 58 NY2d 293, 303; Fischer v Maloney, supra, at 557.)
More must be involved than hurt feelings; mere insults, indignities,
[*1019] threats or annoyances are insufficient. (See, Owen v Leventritt,
174 AD2d 471, lv denied 79 NY2d 751; Lincoln First Bank v Barstro &
Assocs. Contr., 49 AD2d 1025.) Intent or recklessness is an essential
element of the cause of action.

In our case, plaintiff contends
that the disclosure of privileged communications made to a Rabbi by a
penitent, done with malicious intent, meets this stringent standard.
This court agrees. Bearing in mind the sanctity to be accorded such
communications between clergy and [***25] penitent, and the necessity
for confidentiality in conjunction with such spiritual counseling,
without the fear of any reprisal or disclosure, it is both outrageous
and intolerable that such communications would be revealed, even where,
as here, this occurs in part in the context of a judicial proceeding. In
my view, the conduct so transcends the bounds of decency as to be
regarded as both intolerable and atrocious, within the standard
expressed in Freihofer v Hearst Corp. (supra).

Thus, the motion
to dismiss the third and fourth causes of action for infliction of
emotional distress is denied. Although cognizable claims are stated,
factual issues do preclude summary resolution, including, inter alia,
intent or recklessness, a critical element of the cause of action and
one which cannot be resolved on this record. Moreover, although the
cause of action is one governed by a one-year Statute of Limitations
(CPLR 215 [3]; Gallagher v Directors Guild, 144 AD2d 261, lv denied 73
NY2d 708; Goldner v Sullivan, Gough, Skipworth, Summers & Smith, 105
AD2d 1149, 1151), the limitations [***26] issue has not been raised or
addressed on this record.

(c) Defamation

The fifth
cause of action against defendant Weinberger for defamation must be
dismissed. The alleged defamatory statements were set forth in the
affirmation of defendant, which was submitted in the context of the
marital proceeding to determine temporary child custody. " A written
statement ... in the course of a judicial proceeding is absolutely
privileged if, by any [**572] view or under any circumstances, it may be
considered pertinent to the litigation". ( Joseph v Larry Dorman, P.
C., 177 AD2d 618; see also, Martirano v Frost, 25 NY2d 505.) Clearly,
the statements were pertinent to the litigation in that they were
intended to reflect upon plaintiff's fitness to be a good mother.
Plaintiff claims that the statements fall without the scope of the
privilege, since they must have been discussed and, therefore, published
to her husband and/or his attorney [*1020] prior to their having been
reduced to writing for submission on the motion. She contends that this
publication is not subject to any privilege.

However, it is
patently clear from the complaint that [***27] the statements, whenever
published, were made "in connection with the above action for divorce. "
(Complaint P 66.) The absolute privilege is not limited to statements
made or documents used in open court. (See, Klein v McGauley, 29 AD2d
418.) Thus, the statements are absolutely privileged since made for the
purpose of litigation and may not be the subject of a claim for
defamation. Accordingly, the fifth cause of action for defamation as
against defendant Weinberger is dismissed.

CONCLUSION

Accordingly,
upon the foregoing the motion to dismiss and for summary judgment is
granted (1) as to the first and second causes of action, in terms of
liability, only to the extent of limiting, clarifying and defining the
factual issues for trial, namely, whether the privilege had been waived
by the presence of a third person, and whether the nature of the meeting
was such that the communications and disclosures were made to the
Rabbis in their spiritual capacity or to obtain spiritual guidance, and
(2) dismissing the fifth cause of action for defamation as against
defendant Weinberger, and is otherwise denied.

[*373]
[**617] Ordered that the order is reversed insofar as appealed from, on
the law, with costs, those branches of the motion [***2] which were for
summary judgment dismissing the first, second, third, and fourth causes
of action are granted, and the complaint is dismissed.

The
plaintiff, an Orthodox Jewish woman, was experiencing marital
difficulties and turned to the defendant rabbis. During her talks with
the defendants, she disclosed certain private information to them.
However, either the plaintiff's [**618] mother or a friend were present
during those conversations. The plaintiff subsequently commenced a
divorce action against her husband. In opposition to the plaintiff's
motion for pendente lite relief, her husband submitted affirmations by
the defendants which contained some of the material she had disclosed to
them. As a result of the disclosure, the plaintiff commenced this
action against the defendants, asserting causes of action for, inter
alia, breach of the fiduciary duty of confidentiality and the
intentional infliction of emotional distress. Upon converting the
defendants' motion to dismiss pursuant to CPLR 3211 (a) (7) to one for
summary judgment, the Supreme Court, in effect, denied the defendants
summary judgment on the causes of action [*374] for [***3] breach of
fiduciary duty, subject to a determination, inter alia, of whether the
plaintiff's privilege had been waived by the presence of a third person.
The Supreme Court also found that the defendants were not entitled to
summary judgment on the third and fourth causes of action for
intentional infliction of emotional distress. We reverse.

After
the defendants made a prima facie showing that they were entitled to
summary judgment as a matter of law, the plaintiff failed to demonstrate
the existence of a triable issue of fact. Specifically, the plaintiff
failed to show that the clergy-penitent privilege was not waived by the
presence of a third person during her conversations with each of the
defendants (see, Zuckerman v City of New York, 49 NY2d 557, 562). In
view of this determination, we do not determine whether the plaintiff
stated a cognizable claim for breach of fiduciary duty.

Likewise,
the defendants are entitled to summary judgment dismissing the third
and fourth causes of action alleging intentional infliction of emotional
distress. The facts alleged [***4] regarding the defendants' conduct
did not rise to a level which would satisfy the "extreme and outrageous
conduct" element of such a cause of action and, therefore, summary
judgment was warranted (Freihofer v Hearst Corp., 65 NY2d 135).

Santucci, J. P., Florio, and McGinity, JJ., concur.

Concur by: S. MILLER (In Part)

Concur:

S.
Miller, J., Concurs in part and dissents in part and votes to modify
the order appealed from by deleting the provision thereof denying that
branch of the defendants' motion which was, in effect, for summary
judgment dismissing the third and fourth causes of action to recover
damages for the intentional infliction of emotional distress and
substituting therefor a provision granting that branch of the motion,
and otherwise affirming the order, with the following memorandum, in
which Friedmann, J., concurs: I agree with my colleagues in the majority
that the Supreme Court erred insofar as it failed to dismiss the
plaintiff's causes of action to recover damages for intentional
infliction of emotional distress. However, I most strenuously disagree
[***5] insofar as my colleagues have determined, as a matter of law,
that the plaintiff waived her right to seek redress for the defendants'
obvious and intentional violations of their legal duty not to disclose
confidences she imparted to them while seeking religious counseling.
Insofar as pertinent to this appeal, CPLR 4505 provides a secular
command that "thou shalt not tell." The defendants twice violated that
command. Furthermore, as the Supreme Court found, the plaintiff has a
private right of action for the fiduciary breach flowing from this
statutory violation. Finally, the defendants have not [*375]
demonstrated to my satisfaction that the First Amendment precludes the
imposition of liability where, as here, they engaged in intentional acts
in clear violation of a valid and neutral enactment that was not
intended to regulate religious conduct and which were, in any [**619]
event, gratuitous under the facts of this case. Accordingly, I would
sustain the first and second causes of action seeking to recover damages
for the defendants' statutory/fiduciary violations subject to factual
determinations to be made at trial as to whether the plaintiff [***6]
waived the privilege.

The facts underlying this appeal, with one
critical exception to be discussed infra, are not in substantial
dispute. The plaintiff Chani Lightman and her husband, Dr. Hylton Ivan
Lightman, both Orthodox Jews, were experiencing marital difficulties
that prompted the plaintiff to see her rabbis, the defendants, Tzvi
Flaum and David Weinberger. In 1995, in the course of their discussions,
the plaintiff revealed various personal matters concerning her
dissatisfaction with the state of her marriage and that she was
deviating from some of the strictures of her religion. Subsequent
thereto, the defendant rabbis revealed these confidences to Dr.
Lightman. Moreover, in the matrimonial action commenced by the plaintiff
in 1996, the defendant rabbis gratuitously repeated their disclosures
by way of affirmations submitted in opposition to the plaintiff's
then-pending pendente lite application.

The plaintiff commenced
this action in 1997 asserting five causes of action. Insofar as
pertinent, the plaintiff's first two causes of action sought to recover
damages for each of the defendant rabbis' intentional violations of the
"penitent-clergy privilege" [***7] (see, CPLR 4505).

II To
correctly decide the substantive issues presented on this appeal, it is
necessary to understand the unusual procedural path this case followed.
The defendants answered the complaint with a motion to dismiss pursuant
to CPLR 3211 (a) (7). Insofar as relevant to the first two causes of
action, the defendants argued that the plaintiff had no private right of
action for the alleged violation of CPLR 4505 which they regarded as a
mere rule of evidence. The plaintiff opposed this motion, characterizing
her first two causes of action as alleging an actionable "breach of
fiduciary duty arising from the breach of the clergy-penitent
privilege." In the alternative, the plaintiff [*376] pointed to the
numerous cases recognizing the existence of private rights of action
against health care and other professionals for violating analogous
confidentiality statutes, and argued that her claims against the rabbis
were similarly cognizable.

By order dated November 7, 1997, the
Supreme Court notified the parties that it was converting the
defendants' motion to dismiss into one for summary [***8] judgment
pursuant to CPLR 3211 (c). The Supreme Court directed the parties to
submit affidavits or other probative evidence within 30 days, or
pursuant to a schedule to be set by the parties. The parties opted to
submit their affirmations according to an agreed-upon schedule. The
defendant rabbis each submitted affirmations on or about December 22,
1997. Among other things, the rabbis claimed, for the very first time,
that they were obligated under Jewish law to reveal to Dr. Lightman the
plaintiff's confessed failure to engage in monthly purification rituals.
The rabbis asserted that they were required to warn Dr. Lightman
thereof to ensure his compliance with religious strictures. They also
claimed that their disclosures via the affirmations they submitted in
the divorce action were necessary to protect the religious upbringing of
the Lightman children. They further denied having disclosed the
confidences to anyone else.

When the plaintiff attempted to serve
her affirmation dated December 29, 1997, the defense counsel rejected
it as untimely. As his letter dated January 5, 1998, explained, the
parties understood that upon the conversion of the motion [***9] from
one to dismiss to one for summary judgment, "there was to be a
simultaneous exchange of affidavits with no right of reply," and "the
motion for summary judgment was [**620] fully submitted for decision on
December 22, 1997."

The parties subsequently agreed to extend the
date for full submission of papers beyond December 22, 1997. The
plaintiff submitted an affirmation dated February 3, 1998, in addition
to that dated December 29, 1997, and the defendant rabbis each submitted
additional affirmations dated February 5, 1998. The plaintiff's
affirmation of December 29, 1997, disputed the defendants' claims that
they were obligated, under Jewish law, to make the disclosures to Dr.
Lightman or the divorce court. Her affirmation dated February 3, 1998,
disputed the rabbis' claims that they had not revealed her confidences
except to Dr. Lightman and in the matrimonial action, and she named
other individuals with whom she alleged the defendants had shared her
confidences.

The defendants' affirmations dated February 5, 1998,
were [*377] the final papers submitted on the motion. Therein, the
defendants each claimed, Rabbi Weinberger for the very first time, that a
third [***10] person had accompanied the plaintiff when she imparted
her confidences. The defendant Flaum asserted that the plaintiff had
been accompanied by her mother when she spoke to him, while the
defendant Weinberger averred that a friend had accompanied the
plaintiff "on more than one occasion" when she spoke to him. Thereafter,
the case apparently was dormant for several months due to the
plaintiff's substitution of counsel.

The Supreme Court issued an
order dated November 18, 1998, in which it held that the disclosures by
the defendants were actionable. The court granted partial summary
judgment to the plaintiff on the issue of liability as against the
defendant Weinberger for the breach of fiduciary duty of
confidentiality, but denied partial summary judgment on this issue as
against the defendant Flaum, holding a disposition as to him in abeyance
pending an immediate trial on the factual issue of whether a third
party was present at the time of the alleged confidential communication
to that defendant.

However, as the Supreme Court would later
reveal, it had not considered the plaintiff's affirmations of December
29, 1997, and February 3, 1998, nor had it considered the rabbis'
[***11] affirmations of February 5, 1998, in rendering its decision and
order of November 18, 1998. Accordingly, to resolve the confusion
concerning the state of the record, the parties subsequently entered
into a stipulation on January 12, 1999, pursuant to which, inter alia,
the November 18, 1998, decision and order was recalled, and the parties
and the Supreme Court agreed that a new order would be issued upon its
consideration of all of the affirmations submitted.

Consistent
with the above, on or about March 4, 1999, the Supreme Court issued an
order formally recalling and vacating the November 18, 1998, order. On
that same date, the Supreme Court issued the order now on appeal, which,
inter alia, stated: "Accordingly, upon the foregoing, the motion to
dismiss or for summary judgment as to the first and second causes of
action for breach of the fiduciary duty of confidentiality is granted in
terms of liability only to the extent of limiting, clarifying and
defining the factual issues for trial, namely, whether the privilege had
been waived by the presence of a third person, and whether the nature
of the meeting was such that the communications and disclosures were
made to the [***12] Rabbis in their spiritual capacity or to obtain
spiritual guidance, and isotherwise denied" (Lightman v Flaum, 179 Misc
2d 1007, 1018).

[*378]

While the Supreme Court's precise
holding is less than crystal clear from the foregoing, it is apparent
that it intended to sustain the plaintiff's first two causes of action
alleging breaches of the defendants' respective fiduciary duties of
confidentiality, subject to the defendants sustaining their burden of
proving their defenses. [**621] Thus, in effect, the Supreme Court
denied that branch of the defendants' motion which was for summary
judgment dismissing the first and second causes of action inasmuch as it
referred several factual issues for an immediate trial that still has
not taken place. In any event, the Supreme Court found that the
defendants' respective violations of the clergy-penitent privilege
provided by CPLR 4505 afforded the plaintiff cognizable causes of action
for breach of the fiduciary duty of confidentiality and that, since no
First Amendment violation resulted from the enforcement of the
clergy-penitent privilege, the rabbis would not be shielded from
liability [***13] in tort.

III In my view, the majority has
deprived the plaintiff of her entitlement to a determination of the
substantial issues vigorously contested both before the Supreme Court
and on appeal. The majority's reasoning that the plaintiff failed to
demonstrate a triable issue of fact with respect to whether she waived
her clergy-penitent privilege is simply not supportable for several
reasons.

First, and perhaps most significantly, the majority's
conclusion that the plaintiff waived her clergy-penitent privilege by
failing to controvert the defendants' claims regarding the presence of
third parties, is based upon a theory that was never advanced at any
stage of the litigation by any of the parties. It is entirely
unpreserved. It was not advanced by the defendants before Justice
Goldstein in the Supreme Court, nor raised in their appellate briefs,
nor mentioned in oral argument. Indeed, in contrast to the majority's
finding that no issues of fact survived the parties' affirmations, the
defendants' counsel expressly acknowledged to Justice Goldstein during
the parties' on-the-record stipulation discussions that "your decision
is going to be, in essence, a denial of [***14] our motion to dismiss,
and whatever happens with regard to summary judgment, you will treat
that there is going to be a fact issue." Clearly, the majority's
conclusion that the plaintiff failed to demonstrate the existence of
issues of fact to withstand the defendants' summary judgment motion is
based upon a theory completely unanticipated by the parties. Nor is
there any rationale to [*379] justify the majority reaching this in its
interest of justice jurisdiction. On the contrary, justice requires that
the plaintiff be afforded her day in court.

Second, the
majority's reasoning is flawed in that it fails to recognize that under
the unusual procedural circumstances of this case, where there was to be
a simultaneous exchange of affirmations. The plaintiff was precluded
from responding to the defendants' last submissions. As noted, the
allegations of the defendants identifying the third parties allegedly
present were advanced by the rabbis in the very last papers submitted on
the motion. As per the stipulation of the parties, there was to be "no
right of reply." Against this procedural backdrop, it is blatantly
improper for this Court to find that the defendants [***15] are entitled
to summary judgment. It is simply not permissible for the defendants
"to shift to [the] plaintiff ... the burden to demonstrate a material
issue of fact at a time when [the] plaintiff has neither the obligation
nor opportunity to respond absent express leave of court" (Lumbermen's
Mut. Cas. Co. v Morse Shoe Co., 218 AD2d 624, 625). Thus, for this
reason as well, it is improper to award summary judgment to the
defendants on the issue of waiver.

Third, the majority ignores
the assertion in the plaintiff's December 29, 1997, affirmation that she
"saw Rabbi Flaum privately," and the assertions in her December 19,
1997, affirmation that she expected her communications with both rabbis
to remain confidential.

Fourth, the defendants failed to
establish that third parties were present at all pertinent times that
disclosures were made. Rabbi Weinberger conclusorily asserted that "[o]n
more than one occasion, Mrs. Lightman appeared for her meeting [**622]
with her friend ... who was a member of my congregation." Notably, Rabbi
Weinberger did not allege that the friend was present on every occasion
that the plaintiff spoke with him, nor did [***16] he allege that all
confidential disclosures were made in the presence of the friend.
Because this was a non-issue to the parties, and because of the
simultaneous exchange of affidavits, the plaintiff had no opportunity to
provide more specific details. Nevertheless, the majority has
explicitly concluded that the plaintiff's friend was present at all
pertinent times when confidential matters were discussed and that such
third-party presence, as a matter of law, resulted in a waiver of the
privilege. Clearly no such conclusion is borne out by the record. At a
minimum, these conflicting factual assertions clearly give rise to the
existence of issues of fact precluding any award of summary judgment
(see, Walker v Mount Vernon Hosp., 272 AD2d 468; [*380] Gleeson-Casey v
Otis El. Co., 268 AD2d 406; Boyd v Trent, 262 AD2d 260; M. Sobol, Inc. v
Goldman, 259 AD2d 526; Sayers v Albicocco, 256 AD2d 323).

Fifth,
and of critical importance, even assuming that the plaintiff did bring
her mother or her friend to all of the meetings with the defendants and
that these third parties were present when the [***17] relevant
confidences were revealed, it still would not be dispositive on the
issue of waiver. Although the general rule is that the presence of a
third party when an otherwise confidential communication is made results
in a waiver of the privilege, exceptions exist; if the communication
was intended to be confidential, the fact that a third person was
present does not necessarily destroy the privilege.

Generally,
the Court of Appeals has recognized: "The true test [of determining
whether a waiver has occurred] appears to be whether in the light of all
the surrounding circumstances, and particularly the occasion for the
presence of the third person, the communication was intended to be
confidential and complied with the other provisions of the statute."
(People v Decina, 2 NY2d 133, 145; see also, People v Osorio, 75 NY2d
80). The Appellate Division, First Department, had an opportunity to
apply this rule in a case that is materially analogous to the instant
case.

In Stroh v General Motors Corp. (213 AD2d 267), a Mrs.
Maycheck lost control of her car in Washington Square Park and injured
numerous pedestrians. She was sued [***18] by at least 12 parties, along
with General Motors, the manufacturer of the car. The attorneys for
General Motors sought to elicit details about Mrs. Maycheck's
discussions with her attorneys, arguing that the presence of Mrs.
Maycheck's daughter during the attorney- client discussions resulted in a
waiver of the privilege that would otherwise attach to these
communications. The Appellate Division, First Department, rejected this
waiver argument, acknowledging that the 76-year-old driver was entitled
to the moral support of her daughter, concerning this most traumatic
event, without having waived the privilege. The Court analogized this
situation to the many cases holding that the presence of a party's agent
during attorney-client discussions will generally not be held to have
destroyed the privilege. The Court noted: "Generally, the circumstances
of each case will determine whether a communication by a client to an
attorney should be afforded the cloak of privilege (Matter of Jacqueline
F., 47 NY2d 215, 222)" (Stroh v General Motors Corp., supra, at 268).

In
the instant case, the plaintiff was involved in a contentious [*381]
and emotionally [***19] draining marital break-up. She allegedly sought
counseling from her rabbis. Even [**623] assuming that the defendants
conclusively established that the plaintiff was accompanied by her
mother or her friend on some of these occasions, as in Stroh, certainly
her choice to have a close relative or friend to accompany her for
emotional support in this time of marital discord did not, de facto,
constitute a waiver of the clergy-penitent privilege. Therefore, even if
the plaintiff had failed to refute the specific allegations made by the
defendant rabbis in their February 5, 1998, affirmations, a factual
issue still remains as to whether she was in fact accompanied by a third
person at all relevant times, and if so, whether under the
circumstances she intended that the communications still would remain
confidential. Accordingly, on this record, the disputed factual issue of
whether the plaintiff waived the privilege cannot be determined as a
matter of law. Simply stated, under no reasonable view of the record can
it be concluded that the defendants established, as a matter of law,
that the plaintiff intentionally waived the confidentiality privilege by
bringing third parties [***20] to her meetings with the defendant
rabbis.

IV Although the majority's conclusion that the
plaintiff waived her privilege as a matter of law requires them to go no
further, my disagreement with their conclusion as to that issue
necessitates a discussion of two other significant issues to reach what I
consider to be the appropriate disposition of this appeal.

The
defendants have seriously argued, from the start, that CPLR 4505 is a
mere rule of evidence, and that a violation thereof is not actionable.
While apparently no court in this State has sanctioned an action for a
breach of this statute, it is clear that the law of New York does permit
redress for breaches of confidence such as occurred herein.

In
pertinent part, CPLR 4505 provides that "[u]nless the person confessing
or confiding waives the privilege, a clergy[member] or other minister of
any religion ... shall not be allowed [to] disclose a confession or
confidence made to him [or her] in his [or her] professional character
as a spiritual advisor." While this statute had its origins in the Roman
Catholic sacrament of Penance, it is nevertheless applicable [***21] to
all clergy members as it "recognizes the societal value of encouraging
communications" with the clergy for spiritual advice (Alexander,
Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C4505,
at 683). It should be liberally construed to carry out the policy behind
it (see, People v Sinski, 88 NY2d 487 [liberally construing
physician-patient privilege]).

[*382]

The clergy-penitent
privilege is purely a creation of statute; it was unknown at common-law
(see, Matter of Keenan v Gigante, 47 NY2d 160, cert denied 444 US 887).
The CPLR also contains other analogous privileges that protect
communications between, inter alia, attorneys and clients (see, CPLR
4503), physicians and patients ( see, CPLR 4504), psychologists and
clients (see, CPLR 4507), and social workers and clients (see, CPLR
4508). The physician-patient privilege, among others, was also unknown
at common-law (see, Dillenbeck v Hess, 73 NY2d 278). While courts from
time to time have disagreed as to the reasoning, [***22] it is
nevertheless well settled that the law recognizes the existence of a
private right of action for damages for the benefit of a client or
patient whose confidences have been betrayed by a health care
professional (see, Doe v Community Health Plan- Kaiser Corp., 268 AD2d
183; Harley v Druzba, 169 AD2d 1001; Oringer v Rotkin, 162 AD2d 113;
Tighe v Ginsberg, 146 AD2d 268; MacDonald v Clinger, 84 AD2d 482). Such
claims are generally sustained [**624] on a theory that the violation of
the confidence constitutes a breach of a fiduciary or contractual duty
(see, Madden v Creative Servs., 84 NY2d 738).

I need not repeat
the reasoning expressed in my dissent in Langford v Roman Catholic
Diocese (271 AD2d 494) concerning the availability of a cause of action
for breach of fiduciary duty against a member of the clergy. In any
event, the holding of Langford is not dispositive of the issues raised
in the matter at bar. The instant plaintiff alleges discreet,
intentional acts, absolutely prohibited by a clearly-worded statute. In
Langford, the plaintiff asserted [***23] common-law fiduciary claims
predicated upon her priest's violations of his duties of trust and
confidence and his abuse of power, by seducing her as she came to him
for counsel and solace. Characterizing Ms. Langford's causes of action
as alleging clergy malpractice, the majority therein affirmed the
dismissal of the complaint finding that inquiry into the parties'
relationship would require the Court to " 'venture into forbidden
ecclesiastical terrain' " ( Langford v Roman Catholic Diocese, supra, at
495). In the instant matter, certainly a determination of whether the
defendant rabbis violated CPLR 4505 raises no similar concerns.
Moreover, the defendant rabbis' alleged violations were admittedly
intentional. The Langford majority did not dismiss the plaintiff's
intentional tort claims on constitutional grounds, but solely on grounds
of untimeliness. Thus, since Langford does not immunize the clergy from
liability for intentional torts, it has no bearing on the defendant
rabbis' alleged intentional acts in this case.

The other
contention seriously advanced by the defendants [*383] is that they may
not be held liable [***24] for fiduciary breaches flowing from their
violation of the clergy-penitent privilege because they made their
disclosures pursuant to Jewish law. As explained by the defendant Flaum
in his affirmation of December 22, 1997, insofar as the plaintiff
allegedly admitted "seeing men socially outside the marriage" and "that
she had stopped engaging in religious purification laws," he was
affirmatively obligated, as a rabbi, to apprise Dr. Lightman thereof "to
prevent [Dr. Lightman] from violating Torah Law." In essence, the
defendants contend that notwithstanding the secular command of CPLR 4505
that "thou shalt not tell," in light of the nature of the confidences
allegedly revealed by the plaintiff, Jewish law issued a contrary and
overriding command that "thou shalt tell" (cf., Kruglikov v Kruglikov,
29 Misc 2d 17 [wherein the New YorkBoard of Rabbis opined that " 'any
confidence reposed in [a rabbi] by [a]husband or wife ... who has come
to him for counseling [may] not be divulged' "]).

Courts have
long struggled with issues of religious freedom and State regulation
thereof. Prior to any discussion of that weighty issue, it is apparent
[***25] that, as a matter of indisputable fact, the defendant rabbis'
claimed justifications for revealing the plaintiff's confidences to her
husband are no more than transparent contrivances and red herrings.

Both
of the defendants asserted in their affirmations in the matrimonial
action that the plaintiff admitted that she had abstained from religious
purification (mikva), so she did not have to engage in sexual relations
with her husband, and they needed to warn Dr. Lightman to protect him.
However, in his December 22, 1997, affirmation in support of the motion
to dismiss, Rabbi Flaum averred "[m]ore than two years ago, Dr. Lightman
told me that he and his wife were experiencing marital difficulties. He
said that his wife was deviating from the laws and traditions of
Orthodox Judaism and that he thought she was engaging in adulterous
relationships." Furthermore, Rabbi Flaum averred that the plaintiff had
told him that she had [**625] stopped engaging in religious purification
"which resulted in the cessation of all sexual activity with her
husband." Thus, by Rabbi Flaum's own admissions, Dr. Lightman knew that
his wife was eschewing Orthodox rituals, he believed that she [***26]
was having an affair, and all sexual relations had ceased. This set of
facts clearly negates Rabbi Flaum's avowed need to reveal these matters
to Dr. Lightman "to prevent him from violating Torah Law": Dr. Lightman
already knew what was going on. From this perspective, Rabbi Flaum's
intentionally destructive [*384] and arguably malicious revelations to
Dr. Lightman were purely gratuitous and wholly unjustified under any
circumstances (see, Miller, Silence is Golden: Clergy Confidence and the
Interaction Between Statutes and Caselaw, 22 Am J Trial Advocacy 31, 66
quoting Leviticus 19:16: "Thou Shalt not go up and down as a talebearer
among thy people"). The defendant Rabbi Weinberger made identical
assertions in his affirmation of December 22, 1997, which are similarly
unjustified.

In criminal cases we have held that police testimony
in suppression hearings should not be credited where it has obviously
been fabricated and tailored to overcome legitimate constitutional
objections (see, People v Lewis, 195 AD2d 523; People v Lebron, 184 AD2d
784; People v Miret-Gonzalez, 159 AD2d 647; see also, Matter of Bernice
J., 248 AD2d 538; [***27] Matter of Carl W., 174 AD2d 678 [the latter
two cases applying the above stated rule in juvenile delinquency
proceedings]). In this case, the defendant rabbis havepresented the
converse of that argument. They have affirmatively tailored their
affirmations so as to create constitutional objections to shield them
from liability. However, their objections are transparent and
unpersuasive on the facts of this case, and thus provide them no
protection under the First Amendment.

The defendants' revelations
via their affirmations in the matrimonial action were gratuitous and
unwarranted for the same reasons. Even assuming that the plaintiff's
eschewal of the mikva or other alleged transgressions from Orthodoxy
posed any genuine threat to the well-being of the children, such that it
would be relevant on the issue of temporary custody, Dr. Lightman was
certainly able to oppose the plaintiff's pendente lite application by
raising these very same assertions from his personal knowledge. Whether
or not the defendants' superfluous, derogatory affirmations had been
"bought" by Dr. Lightman's "largess" and generous financial
contributions as a transparent effort to embarrass [***28] the plaintiff
as she alleged, it is nonetheless clear that they were duplicative,
cumulative, and obviously unnecessary for the court's determination of
the temporary custody issue. Once again, on the facts of this case, the
defendants' "free exercise" justification defense is conclusory,
illusory, and unconvincing.

Furthermore, insofar as the plaintiff
is seeking to recover damages for the fiduciary breach that resulted
from the defendants' intentional violations of CPLR 4505, I am persuaded
that this statute does not place undue burdens on their free exercise
rights. The concept of the separation of church and state is deeply
imbedded in our law. The First Amendment [*385] to the United States
Constitution commands, in relevant part: "Congress shall make no law
respecting the establishment of religion, or prohibiting the free
exercise thereof." The concept of "free exercise" is made up of two
component parts; "freedom to believe and freedom to act. The first is
absolute but, in the nature of things, the second cannot be. Conduct
remains subject

NEW
YORK (JPS) -- Two New York rabbis may have violated clergy-congregant
confidentiality, an outraged state court judge announced last week.

At
the same time, the judge made a precedent-setting ruling to allow an
Orthodox woman to sue the rabbis whom she claims betrayed her by telling
her intimate secrets to her estranged husband in a child-custody
battle.

The incident began when Chani Lightman of Long Island
sought religious counseling about her troubled marriage from the rabbis
in 1995.

After she filed for a civil divorce in February 1996 and
sought custody of her four children, the rabbis revealed her secrets to
her husband's lawyers, according to her lawsuit.

Judge David Goldstein refused to dismiss the civil suit against Rabbis Tzvi Flaum and David Weinberger.

"No
member of the clergy...would dare breach the sanctity of his or her
office to make public the type of confidential, private disclosures at
issue in this case," the judge wrote in a ruling released Thursday of
last week.

"Moreover, to do so under the guise of religious
necessity, conviction or the protection of the Torah is not only wrong,
it is outrageous."

Flaum and Weinberger were said to have
provided written statements to the husband's lawyers that Chani Lightman
had stopped monthly visits to the mikvah for ritual purification.

She also told Flaum, according to the affidavit he submitted to the court, that she had seen another man socially.

The
rabbis' lawyer, Frank Snitow, said he will appeal the ruling. Snitow
contends that the rabbis had a religious obligation to share the
information with the divorce court, because it dealt with Chani
Lightman's ability to raise the children in accordance with Orthodox law
and customs.

While the Lightman divorce is pending, a judge has granted her husband, Dr. Hylton Lightman, temporary child custody.

Her husband has refused to give her a get, a religious divorce required under Jewish law.

Chani
Lightman, a 38-year-old nurse, told the New York Post that she had been
betrayed by the rabbis and estranged from the Orthodox community.

"I don't exist anymore. I'm invisible. I feel like I'm dead," she said. "I don't have a life now."

This opinion is uncorrected and subject to revision before publication in the New York Reports.

Abe H. Konstam, for appellant.

Franklyn H. Snitow, for respondents.

National Jewish Commission on Law and Public Affairs, et al., amici curiæ.

GRAFFEO, J.:

In
this appeal, we must decide whether CPLR 4505 imposes a fiduciary duty
of confidentiality upon members of the clergy that subjects them to
civil liability for the disclosure of confidential communications. We
hold that it does not.

After 15 years of marriage, plaintiff
Chani Lightman initiated a divorce proceeding against her husband,
Hylton Lightman, in February 1996. She also sought an order granting her
temporary custody of the parties' four children. In opposition to
plaintiff's application, her husband submitted, under seal, affirmations
from two rabbis, apparently intending to show that his wife was
jeopardizing the Orthodox Jewish upbringing of the children by not
following religious law. Rabbi Tzvi Flaum, who was associated with the
synagogue where the Lightmans were congregants, stated that plaintiff
had advised him that she had stopped engaging in "religious purification
laws" and was "seeing a man in a social setting." Similarly, Rabbi
David Weinberger, an acquaintance of the Lightmans, in his affirmation
indicated that plaintiff had acknowledged to him that "she freely
stopped her religious bathing so [that] she did not have to engage in
any sexual relations" with her husband, and he opined that plaintiff no
longer wanted "to adhere to Jewish law despite the fact that she is an
Orthodox Jew and her children are being raised Orthodox as well."

As
a result of the rabbis' disclosures of those conversations, plaintiff
commenced this action against them, asserting causes of action for
breach of fiduciary duty in violation of the CPLR 4505 "clergy-penitent
privilege," intentional infliction of emotional distress and defamation
against Rabbi Weinberger. Prior to answering, defendants moved to
dismiss the complaint, contending that a violation of the statutory
evidentiary privilege did not give rise to a private right of action,
plaintiff's allegations were insufficient to support a cause of action
for intentional infliction of emotional distress and the statements of
Rabbi Weinberger were protected speech in the nature of an opinion.
Plaintiff opposed the motion and defendants countered that dismissal of
the breach of fiduciary duty claims was compelled by the First Amendment
of the United States Constitution because the disclosures were required
under Jewish law.

Supreme Court converted the motion into one
for summary judgment and directed the parties to provide further
evidence relevant to that determination. Rabbi Flaum submitted two
additional affirmations in which he expanded on the nature of his
discussions with the Lightmans. He claimed that more than two years
earlier Hylton Lightman first revealed marital problems to him. That
conversation prompted plaintiff's mother to request that he speak with
plaintiff. At the meeting, plaintiff and her mother berated him for
discussing the marriage with plaintiff's husband and for giving advice
without obtaining plaintiff's version of the situation. He alleged that
plaintiff admitted to discontinuing her religious purification rituals
and indicated she was socializing with men other than her husband. Rabbi
Flaum further contended that these statements were not confidential
because plaintiff never requested spiritual guidance and that, pursuant
to Jewish law, he was obliged to relay this information to plaintiff's
husband in order to prevent him from engaging in conjugal relations with
his wife in violation of the Torah, as well as to shield the couple's
children from exposure to plaintiff's improper conduct.

Rabbi
Weinberger echoed this doctrinal explanation for the disclosures and
alleged that he had met jointly, and separately, with the Lightmans. He
claimed plaintiff was accompanied by a friend at these meetings on more
than one occasion. Expressing surprise that plaintiff would have
admitted her failure to follow religious laws of family purity while in
the presence of a friend, Weinberger indicated that these revelations
led him to believe the discussions were not confidential. Plaintiff
disputed defendants' interpretation of religious law, and characterized
her interactions with defendants as spiritual counseling received with
the expectation that intimate information would remain confidential.

Supreme
Court granted partial summary judgment by dismissing plaintiff's
defamation claim but ruled that the causes of action for intentional
infliction of emotional distress and breach of fiduciary duty were
viable. As to the latter, the court concluded that there were issues of
fact regarding whether the communications remained confidential despite
the presence of third parties during the various conversations and
whether the communications were made to defendants in their spiritual
capacity. Supreme Court further found that a violation of CPLR 4505 was
actionable as a breach of fiduciary duty of confidentiality and that
there were no First Amendment implications under the facts presented.

The
Appellate Division modified by dismissing the fiduciary duty and
emotional distress causes of action. The court determined that plaintiff
failed to demonstrate that she had not waived the clergy-penitent
privilege due to the presence of third parties during her meetings with
each of the defendants. Accordingly, the court declined to address
whether plaintiff stated a claim for breach of fiduciary duty.

Two
Justices dissented, in part, and would have sustained the causes of
action for breach of fiduciary duty, leaving as an issue of fact whether
plaintiff waived the clergy- penitent privilege. Finding the fiduciary
duty claims actionable, the dissent reasoned that a cause of action for
breach of fiduciary duty of confidentiality stems from a breach of CPLR
4505 because claims arising from violations of analogous statutory
provisions had been recognized and defendants had not adequately shown
they were entitled to First Amendment protection. Plaintiff appealed to
this Court as a matter of right, and we now affirm for reasons different
from those stated by the Appellate Division.

The common law
insulated certain confidential information from disclosure at trial,
such as interspousal communications made during the course of a marriage
( see, McCormick on Evidence § 78, at 323-324 [5th ed. 1999]).
Eventually, special categories of confidential communications were
deemed by statute to be entitled to a privilege against disclosure (see,
Prince, Richardson on Evidence § 5-101, at 225 [Farrell 11th ed.
1995]). CPLR article 45 codifies rules of evidence that restrict the
admissibility of information obtained in specified confidential
contexts, such as that which exists between spouses (CPLR 4502 ),
attorney and client (CPLR 4503 ), physician and patient (CPLR 4504 ),
psychologist and client (CPLR 4507 ) and social worker and client (CPLR
4508 ). In general, these statutes protect special relationships akin to
fiduciary bonds, which operate and flourish "in an atmosphere of
transcendent trust and confidence" (Aufrichtig v Lowell, , 85 NY2d 540,
546).

The clergy-penitent privilege was unknown at common law
(see, Matter of Keenan v Gigante, , 47 NY2d 160, 166, cert denied 444 US
897).[1] It arose from the Roman Catholic sacrament of Penance, which
requires sins to be disclosed to a priest who is prohibited by
ecclesiastical law from revealing the substance of those disclosures
even when the refusal to disclose results in imprisonment for contempt
(see, Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book
7B, CPLR 4505 , at 683). Enacted to respond "to the urgent need of
people to confide in, without fear of reprisal, those entrusted with the
pressing task of offering spiritual guidance so that harmony with one's
self and others can be realized" (Matter of Keenan v Gigante, 47 NY2d
at 166), the privilege originally applied only to communications with
members of the clergy who were enjoined from disclosing the substance of
such communications under the rules or practices of their religion
(see, former Civil Practice Act § 351).

Recognizing the value of
extending the privilege to other religions (see, Second Prelim Report of
Advisory Comm on Prac & Pro, 1958 NY Legis Doc No. 13, at 93), the
Legislature adopted CPLR 4505 , which applies to confidential
communications made by congregants to clerics of all religions (see,
People v Carmona, 82 NY2d at 608-609). CPLR 4505 provides that unless
"the person confessing or confiding waives the privilege, a clergyman,
or other minister of any religion or duly accredited Christian Science
practitioner, shall not be allowed [to] disclose a confession or
confidence made to him in his professional character as spiritual
advisor." A communication is not privileged merely because it is made to
a cleric (see, Matter of Keenan v Gigante, 47 NY2d at 166). Rather, the
statute's protection envelops only information imparted "in confidence
and for the purpose of obtaining spiritual guidance" (People v Carmona,
82 NY2d at 609).

Here, plaintiff acknowledges that she cannot
prevail without proving the existence of a fiduciary relationship with
each defendant and the requisite expectation of confidentiality, but
argues that she automatically satisfies both elements because the
information protected by CPLR 4505 is confidential as a matter of law.
Defendants, on the other hand, reject the notion that a rule of evidence
can establish an actionable fiduciary duty of confidentiality. They
contend that clerics cannot be compared to the secular professionals
enumerated in article 45 because those practitioners derive their
professional authority from the issuance of licenses. Defendants
emphasize that these professionals must conduct themselves in accordance
with the rules that regulate their interactions with clients or
patients and are subject to disciplinary measures for professional
misconduct. Finally, defendants claim that utilizing CPLR 4505 as the
fiduciary standard would raise significant constitutional concerns
because it would require courts to interpret religious principles and
chill defendants' exercise of Jewish beliefs.

We find a
distinction between confidential information under the rules and
regulations that govern secular professionals and information cloaked by
an evidentiary privilege under the CPLR. This difference demonstrates
that statutory privileges are not themselves the sources of fiduciary
duties but are merely reflections of the public policy of this State to
proscribe the introduction into evidence of certain confidential
information absent the permission of or waiver by a declarant. For
example, in the attorney-client context, CPLR 4503 applies only to
"confidential communication[s] made between the attorney or his employee
and the client." The Code of Professional Responsibility, however,
prohibits the disclosure not only of "confidences," defined as
"information protected by the attorney- client privilege," but also of
"secrets," described as "other information gained in the professional
relationship that the client has requested be held inviolate or the
disclosure of which would be embarrassing or would be likely to be
detrimental to the client" (Code of Professional Responsibility DR 4-101
[A], [B] [22 NYCRR 1200.19 (A), (B)]). Thus, an attorney's duty of
confidentiality is substantially broader than that reflected in CPLR
4503 .

In fact, we have previously explained that a significant
purpose of the Code of Professional Responsibility is to ensure "that
attorneys remain faithful to the fiduciary duties of loyalty and
confidentiality owed by attorneys to their clients" (Kassis v Teacher's
Ins. & Annuity Assn., , 93 NY2d 611, 616) as well as the "duty to
deal fairly, honestly and with undivided loyalty" (Matter of Cooperman, ,
83 NY2d 465, 472; see also, Matter of Russakoff, , 79 NY2d 520, 524 and
Greene v Greene, , 47 NY2d 447, 451).

A similar dichotomy
between professional confidentiality obligations and evidentiary rules
designed to preserve confidentiality exists for physicians and other
health care professionals. CPLR 4504 prevents the disclosure of
information "acquired in attending a patient in a professional capacity,
and which was necessary to enable [the physician or other health care
professional] to act in that capacity." Nevertheless, information
obtained in a professional capacity but not necessary to enable the
physician to fulfill his or her medical role is a protected confidence,
the disclosure of which constitutes professional misconduct in the
absence of patient consent or legal authorization (see, Education Law §
6530 [23]; see also, 8 NYCRR 29.1 [b] [8]). Thus, although the statutory
privileges may in some instances overlap with the applicable fiduciary
duties of confidentiality which have been defined elsewhere in the law,
those evidentiary rules are not the sources of the underlying duties,
and article 45 does not establish the parameters of those fiduciary
relationships.

The clergy and the other classes of professionals
specified in CPLR article 45 are also fundamentally different with
respect to the extent of State regulation of their professional
practices. Individuals employed in other fields subject to statutory
privileges derive their authority to practice from the State, which
conditions the issuance of a license on, among other requirements, the
completion of formalized education and/or training (see, Education Law
§§ 6524 [2], 6554 [2], 6604 [2], 6905 [2], 7004 [2], 7603 [2], 7704 [2];
22 NYCRR 520.3, 520.4). Statutes and regulations specifically prohibit
the disclosure of confidences and invoke the possibility of sanctions
for professional misconduct (see, e.g., Education Law § 6530 [23],
supra; 8 NYCRR 29.1 [b] [8], supra; Code of Professional Responsibility
DR 1-102 [A] [1] [22 NYCRR 1200.3 (A) (1)]; Code of Professional
Responsibility DR 4-101 [A], [B] [22 NYCRR 1200.19 (A), (B)]). In
contrast, clerics are free to engage in religious activities without the
State's permission, they are not subject to State-dictated educational
prerequisites and, significantly, no comprehensive statutory scheme
regulates the clergy-congregant spiritual counseling relationship. This
explains plaintiff's inability to identify a source of defendants'
alleged duty of confidentiality independent of CPLR 4505 .

Defendants
and the amici strenuously argue that the imposition of liability
without regard to a cleric's religious principles which motivate or
compel disclosure would violate the Free Exercise and Establishment
Clauses of the First Amendment of the United States Constitution.
Despite the inconsistencies in defendants' rationale for revealing
plaintiff's communications (as aptly noted by the dissent in the
Appellate Division), the prospect of conducting a trial to determine
whether a cleric's disclosure is in accord with religious tenets has
troubling constitutional implications. To permit a party to introduce
evidence or offer experts to dispute an interpretation or application of
religious requirements would place fact-finders in the inappropriate
role of deciding whether religious law has been violated.

The
United States Constitution protects the right of individuals to "believe
what they cannot prove. They may not be put to the proof of their
religious doctrines or beliefs * * * [I]f those doctrines are subject to
trial before a jury charged with finding their truth or falsity, then
the same can be done with the religious beliefs of any sect. When the
triers of fact undertake that task, they enter a forbidden domain"
(United States v Ballard, 322 US 78, 86-87). As we explained in a
different context, "civil courts are forbidden from interfering in or
determining religious disputes. Such rulings violate the First Amendment
because they simultaneously establish one religious belief as correct *
* * while interfering with the free exercise of the opposing faction's
beliefs" (First Presbyt. Church of Schenectady v United Presbyt. Church
in the United States of Am., , 62 NY2d 110, 116, cert denied 469 US
1037; see also, Park Slope Jewish Ctr. v Congregation B'Nai Jacob, , 90
NY2d 517, 521; Avitzur v Avitzur, , 58 NY2d 108, 114, cert denied 464 US
817).

Guided by these well-settled principles and in the absence
of a statute, regulation or other source delineating the scope and
nature of the alleged fiduciary duty, we view the CPLR 4505 privilege in
the manner intended by the Legislature -- as a rule of evidence and not
as the basis of a private cause of action. Although plaintiff
understandably resents the disclosure of intimate information she claims
she revealed to defendants in their role as spiritual counselors, we
hold that, as a matter of law, CPLR 4505 -- directed at the
admissibility of evidence -- does not give rise to a cause of action for
breach of a fiduciary duty involving the disclosure of oral
communications between a congregant and a cleric. Remittal for factual
determinations is thus unnecessary and defendants are entitled to
summary judgment dismissing the first and second causes of action.

In
light of this conclusion, we need not address plaintiff's remaining
contentions, including whether there was an issue of fact concerning her
purported waiver of the privilege.

Accordingly, the order of the Appellate Division should be affirmed, with costs.

Helen Chayie Sieger practised the faith of the community in which she lived in Brooklyn: that of Bobovar Hassidic Jewry. Now she has been branded by its elders as a sinner, 'totally unfit for sexual intercourse'.

Chani Lightman, on the Modern Orthodox wing of the Jewish faith, did likewise, in Cedarhurst, Long Island. Now, the secrets she confided in her spiritual guide stand to cost her the custody of her children, as they were spread about the community to denounce her.

Both women are, and have always been, deeply religious, loyal to their beliefs and their people. Sieger, 45, is a nursing home administrator. Lightman, 38, a mother of four children, is a nurse.

Battle lines have been drawn around them. To some they are heretics and outcasts, to others beacons of bravery, dignity and reform.

During the coming weeks, in parallel legal actions, Sieger and Lightman will walk a tightrope between Jewish and secular law.

Lightman is suing a rabbi whom she accuses of betraying confidences to her husband. She had gone to Rabbi David Weinberger for marriage counselling and had told him intimate details about sex and even violence behind closed doors in the marriage with her estranged husband, Dr Hylton Lightman.

Then she began to hear whispers in the tightly knit community - that she was failing to live by religious law - even, according to the court papers, that she was 'seeing a man in a social situation'.

And when it came to a legal tangle over the custody of the couple's four children, Lightman was appalled to find that details of her confidences with the rabbi were contained in the papers.

She took her case to court, winning a summary judgment from Justice David Goldstein, who called the rabbi's action 'not only improper, it was outrageous and offensive'.

Now Lightman is seeking damages said to run 'into millions'. 'I am religious and feel very strongly about Judaism,' said Lightman, 'but I don't feel this is a representation of what Judaism or religion is. It is simply an abuse of power by some men.'

Sieger's case is more complex, more squalid and cuts far deeper. She is suing for $13 million an assembly of 100 rabbis across the United States and Canada, claiming that some of the rabbis were paid in cash by her estranged husband of 26 years to grant a special 'polygamous' divorce. Orthodox Jews who seek a divorce in the civil courts are subject, of course, to the same law as any American. But in order to remarry they must also secure or be granted a get , a religious divorce.

Sieger left her husband Chaim, whom she married in 1972, in 1995. The following year she was advised by the chief rabbi of the Bobov community to see one of the men she is suing - a Rabbi Herbst - to talk about her marital difficulties. She decided not to do so. But two years later Herbst 'falsely' wrote to tell her she was obliged under Jewish law to consult him. She did so on condition of confidentiality. She told him 'many intimate details' of the 'long and troubled marriage'.

She initiated divorce proceedings and appeared three times before a rabbinical court to secure the get. Out of the blue a letter arrived from her husband's attorney to say that 'as you are aware, a rabbinical divorce has already been granted'. Indeed it had - a rare heter meah rabonim , reserved for either sinners against Jewish law or else the mad and comatose.

A heter is not a divorce, but an endorsed polygamy, enabling a man to take another wife in extreme circumstances, where the bonds of the existing marriage defied all hope of happiness.

The heter included intimate details, which Sieger says could have come only from Rabbi Herbst, to show that she was 'not fit to live with and have sexual relations with'. Sieger's case has caused consternation in Brooklyn, home to the world's biggest communities of Hassidic Jews. Meetings have heard impassioned speeches for and against her. And behind it all is a woman 'strangled', she says, 'by stigma'.

Rabbi Dovid Weinberger, of Congregation Shaaray Tefila, will be honored at the Orthodox Union's (OU) Rabbinic Centennial Medallion Awards Dinner on Wednesday, February 28, 2001 at the Grand Hyatt Hotel, 42nd Street and Lexington Avenue in New York.

The OU will honor Rabbi Weinberger as well as 11 other outstanding rabbis and their congregations who have made unique contributions to Orthodox Jewish life in America.

"Rabbi Weinberger is an impressive community and spiritual leader who has made an enormous contribution to Jewish life," said OU President Harvey Blitz.

Rabbi Weinberger is a noted author and editor, having co-authored the Siddur Nechomas Yisroel for the Bais Ovel, and edited five volumes of Limudei Nisson, a collection of the Torah writings of his esteemed late father-in-law, Rav Nisson Alpert, zt"l. He authored Guide for the Jewish Hospital Patient (O.U. publication), a book entitled Shema Beni on the laws of education, and most recently a booklet on the laws of travel called Around the World the Halachic Way. He lectures on topics of hashkafa and halacha, emphasizing areas of chinuch, Hilchos Shabbos and Hilchos refuah. He is the halachic advisor of Hatzola in the Five Towns and lectures often for Shalom Task Force, a national organization dealing with spousal abuse in the Jewish community. In addition, Rabbi Weinberger is the founder of the Five Towns Rosh Chodesh program for women, and Aneinu, an international Tehillim organization.

"We cannot overemphasize the importance of rabbis, synagogues and communal institutions working in concert to insure a thriving Orthodoxy," said Mr. Blitz. "The Orthodox Union acknowledges the synagogue as the focus of Jewish communal life. Each community is built around a vibrant synagogue led by a dynamic rabbi. It is that leadership that we are proud to honor."

Rabbi Dovid Weinberger - YouTubeTorah Learning Center of Northbrook, IL - July 23, 2002The following film clip is from a workshop in Chicago in which Rabbi Dovid Weinberger speaks on "Issues of Confidentiality: Under What Circumstances May a Rabbi Reveal Information.

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Survivors ARE Heroes!

The Awareness Center believes ALL survivors of sex crimes should be given yellow ribbons to wear proudly.

Survivors of sexual violence (as adults and/or as a child) are just as deserving of a yellow ribbon as the men and women of our armed forces, who have been held captive as hostages or prisoners of war.

Survivors of sexual violence have been forced to learn how to survive, being held captive not by foreigners, but mostly by their own family members, teachers, camp counselors, coaches babysitters, rabbis, cantors or other trusted authority figures.

For these reasons ALL survivors of sexual violence should be seen as heroes!